Matthew Nieman
Avi Meyerstein Matthew Nieman

 By Avi Meyerstein and Matthew Nieman

Are some of your miners having a little too much fun in their spare time? With cultural norms and state laws regarding marijuana use in flux around the country, the answer may be “yes,” which puts you and other mine operators in a challenging position.

Miners cannot perform their jobs safely — for themselves and those around them — while under the influence of drugs like marijuana. Yet, determining when someone’s off-hours cannabis use is affecting on-shift performance is not easy. An even greater challenge is that a changing legal landscape with state “medical marijuana” laws leaves miners unsure of what drugs they can use and operators unsure of what policies they can enforce.

Quest Diagnostics, a lab that processes millions of employer drug tests, reported in September that for the first time in 10 years, drug use by American workers has increased (as measured by positive worker drug tests). Moreover, Quest concluded that greater use of marijuana and amphetamines was a major cause of this rise.

The rate of positive drug tests increased by 5.7% from 2012 to 2013, with a 3.7% rate of positive tests. Marijuana remains the most commonly detected illegal substance. Positive marijuana findings increased by 6.2% (including those in safety-sensitive positions).

Mines certainly are no exception. In 2008, the U.S. Mine Safety and Health Administration (MSHA) noted that “in the mining industry, 13.3% of full-time miners were heavy alcohol users and 7.3% admitted that they used illicit drugs within the past month.”

In recent years, 20 states have legalized some form of medical marijuana. In most cases, this means that patients with a doctor’s recommendation can use marijuana for medicinal purposes — at least as far as state law is concerned (often, they have an affirmative defense against prosecution).

Two states have gone even further. Colorado and Washington have authorized marijuana use (and possession) on a recreational basis, treating it much like alcohol use. Positive workplace drug tests have increased dramatically in these two states, by 20-23%, though some of these increases began prior to legalization.

None of these states allowing medical marijuana specifically requires an employer to accommodate an employee’s marijuana use at the work site, but a number prohibit discrimination against employees based on their status as qualified marijuana users/card holders.

Regardless of what any state says, though, U.S. law still prohibits cultivating, possessing or selling marijuana. Under the Controlled Substances Act, it is a Schedule I drug. U.S. law has no exception for medical necessity or treatment, and U.S. law generally “preempts” or overrules conflicting state laws.

Indeed, while leaving state and local governments to enforce their own criminal laws, the U.S. Department of Justice has emphasized that it will continue to prosecute significant federal marijuana offenses. In addition, current illegal drug use is not a protected “disability” under the Americans with Disabilities Act.

Especially because of this federal-state conflict, each new state law brings legal challenges. But, so far, every time someone has tried to avoid application of the federal ban on marijuana in the civil context, federal law has won, including before the U.S. Supreme Court.

What Can and Should Mine Operators Do?
No employer wants employees to be high at work. But, for miners, the issue can be a matter of life and death. MSHA has not yet banned drugs in coal mines. It has done so in metal/nonmetal mines and began, but never completed, an anti-drug rulemaking in 2008 that would apply to all mines.

Nonetheless, responsible mine operators should develop and enforce their own drug and alcohol policies, including drug testing despite practical and legal complications. Practically, detecting marijuana abuse at work short of testing on a post-incident basis is difficult and calls for medical knowledge beyond normal mine expertise.

How can you know when a miner is under the effects of drugs? Can a miner facing discipline for failing a test prove discrimination, arguing that the operator’s test did not prove drug use or impairment at work? If an operator accommodates some marijuana use, does it risk liability for discrimination by treating employees differently?

Although the legal landscape continues to evolve and these questions are challenging, the best approach remains to rely on federal law and prohibit drug use at or during work and to conduct drug testing accordingly.

Some state marijuana laws explicitly support this approach. Several do not prohibit discrimination against employees in “safety-sensitive positions.” Some explicitly allow employers to ban drug use or impairment at work. In some states, a positive drug test can support a good faith belief that a miner used, possessed or was impaired by drugs at work.

One example among coal-producing states is Illinois, which allows employers to enforce drug testing, zero-tolerance and drug-free policies in a nondiscriminatory manner. It permits discipline against any employee, including qualified marijuana users, for failing a drug test in violation of those nondiscriminatory policies.

The devil, however, is in the details. Each state is different, and new laws and legal challenges continue to emerge. The best advice is to stay on top of this issue. Working with your employment counsel, stay updated on your state’s drug laws. Periodically have your drug and drug testing policies (and implementation) reviewed to ensure that you can continue to both maintain a safe workplace and avoid potential liability. The bottom line: if your miners have the munchies, there is something you can do.

Avi Meyerstein and Matthew F. Nieman are shareholders in Jackson Lewis’ Washington, D.C., region office. Meyerstein assists clients with MSHA, OSHA, and other workplace safety and health matters. Nieman, the co-author of the Guide to State and Federal Drug-Testing Laws, represents employers in a broad spectrum of labor and employment law matters, including workplace drug-testing issues.