is nearly limitless. Employers should be aware of what such a lawsuit could cost. Typically, an employer who chooses to setle a lawsuit out of court would pay a deductible of $35,000, with $90,000 covered by insurance. Should an employer choose to allow a case to go to court, it would be responsible for an average $200,000 in costs, not including defense. Approximately 25% of such cases that go to trial result in over $500,000 in costs.11
Marijuana in the Workplace: Case Law Recent court cases might have leſt employers questioning either their right to continue testing for marijuana or even its value. Cases such as Noffsinger v. Niantic Operating Co. ruled that employees and potential employees in Connecticut have the right to sue employers who terminate based on a positive drug screening for marijuana. Connecticut law states:
“No employer may refuse to hire a person or may discharge, penalize, or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient . . .”
Noffsinger is not the first, and won’t be
the last, case that weighs in on employers’ rights in the workplace. It is important to note that Noffsinger
and other similar cases do not prohibit employers from continuing marijuana testing. Te Noffsinger ruling is an important reminder to employers as to what their drug testing policies should contain, and a warning that employers should be prepared for the eventuality of similar cases. In states with marijuana laws such as Connecticut, drug testing policies that terminate/deny employment based solely on a marijuana-positive drug test should be re-examined in order
protect employers from future cases like Noffsinger. Additionally, employers should stay informed about current legislation in their state that could impact employers’ drug testing rights. Ever-changing marijuana laws in states will affect employers’ ability to hire, terminate, and take disciplinary action based solely on a marijuana-positive test result. Qui facit per alium facit per se
court cases specific to marijuana are inevitable, and looking at similar cases pertaining to alcohol provides a glimpse of the potential costs to employers. The Kentucky case of Allgeier v. MV Transportation Inc. resulted in the employer paying $5 million due to the actions of an alcoholic employee. The customer that was harmed by the intoxicated employee suffered injuries amounting to less than $1 million; however, they were awarded over $4 million in punitive damages due to the employer’s negligent hiring of the employee at fault. Employers who choose to eliminate marijuana from their drug testing panel open themselves to the steep financial ramifications of cases such as Allgeier v. MV Transportation Inc.
Conclusion While it may seem prudent to employers to eliminate marijuana from their drug testing panel to ease a misperception of inconvenience or discrimination, employers who do so are, in fact, opening themselves to potentially costly consequences. Federally-mandated employers are required to continue testing for marijuana, no mater their state’s stance on its use. As a TPA, one of your most crucial roles is to inform your clients of the potential risks of removing marijuana from their panel. Clearly the erroneous perception of risk is far outweighed by the financial burdens placed on employers who
choose to remove the important safety measure of marijuana testing from their employment practices. ❚
References 1 2 2017 Employer Survey, the Current Consulting Group, LLC
“Where Did Dabs Come From? A History of Cannabis Extracts”
https://www.leafly.com/news/cannabis-101/ where-did-cannabis-dabs-come-from
3
“The Facts about Marijuana Concentrates.” Just Think Twice.
https://www.justthinktwice.gov/facts-about- marijuana-concentrates
4 5 NIDA
“Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health.” SAMHSA. 2015.
https://www.samhsa.gov/data/sites/ default/files/NSDUH-FRR1-2014/NSDUH-FRR1-2014.pdf
6 7 8 9 10 CDC report, 2014
Drugs in the Workplace,
NCADD.org U.S. Department of Labor U.S. Department of Labor
“Business Case for Safety and Health.” The United States Department of Labor Occupational Health and Safety Administration.
https://www.osha.gov/dcsp/products/ topics/businesscase/
costs.html.
11
“Employee Charge Trends Across the United States.” The 2015 Hiscox Guide to Employee Lawsuits. 2015. https://
www.hiscox.com/documents/The-2015-Hiscox-Guide-to- Employee-Lawsuits-Employee-charge-trends-across-the- United-States.pdf.
Nina M. French is the Manag- ing Partner for the Current Consulting Group (CCG) with over 25 years of experience in employee screening. Nina has experience in managing drug-
free workplace operations including product development, vendor management, medical review, client services, account management, marketing, and sales strategy. Her consulting emphasis is on helping screening compa- nies streamline operations, define product portfolios, align core business goals, launch new products, increase revenue, and improve client retention. Nina’s experience within the screening industry provides her with the ex- pertise to consult with employers on program design, vendor selection, and best practices. Nina is widely published and speaks at over 40 events each year including client-hosted educational trainings, webinars, SAPAA, DA- TIA, NAPBS, iHeart Radio, and SHRM.
www.datia.org
datia focus
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