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The Details are in the Weed
By: Donald Berner

With the expansion of legalized recreational marijuana in several states and localities, there will continue to be discrepancies between legal usage of a product and the consequences for that usage under employer policies for drug testing.  In some cases, this tension may come from the use of other substances that are not exactly marijuana. 

For example, an employee may test positive for the use of marijuana in cases where they are ingesting products containing cannabis.  These products can include items like hemp oil as well as other edible type items.  If an employee has sufficient levels of a controlled substance in their system, a positive test result can occur.  Unlike other situations where a medical review officer (MRO) can justify the positive result, the scenario with hemp and other cannabis related products is not justifiable.  As a result, employers may see more cases of positive drug test results due to what employees perceive to be acceptable uses of products.

The inability of an MRO to excuse a positive result triggered by hemp oil may be something employers want to address with employees to avoid these difficult situations.  As legalized recreational marijuana becomes more common and the uses of various cannabis related products grows, these situations are more likely to become more commonplace.

Drugs, Alcohol, and Falls: Workplace Safety Gone Bad
By: Donald Berner

Most employers with drug-and-alcohol-testing policies require employees suffering a workplace injury to be tested for drugs or alcohol.  It is common for these post-injury tests to be conducted at the same time the employee receives medical attention for the injury.  These types of testing requirements make sense and are generally a sound practice.  The key for employers is ensuring these policies are implemented in an effective yet responsible manner. 

From the category of its-too-crazy-to-be-made-up, a lawsuit on this topic was recently filed in Dallas.  In that case, an employee suffered a workplace injury after falling from an undisclosed height.  The employer had a practice of drug testing employees injured on the job and allegedly required a drug test.  The minor problem in this case -- the employer is alleged to have left the unconscious worker lying on the floor for two hours waiting on the drug test to be administered.  The employer then called 911, and the employee was taken by the paramedics to a hospital, where the employee later died.  The plaintiffs allege the long delay in receiving treatment led to the employee's death.  Click here for the story.

Keep in mind now that, as with any lawsuit, the initial claims made by the plaintiff are not always accurate, and in this case I hope that is exactly the situation.  For those of you that require a drug test following a workplace injury, make sure you always look first to the employee's health and safety before focusing on the testing procedure.


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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