Recent marijuana-use legalization is changing the way the UAW is approaching this aspect of bargaining as well as contract administration.
So far, 11 U.S. states and territories have legalized marijuana for recreational use, and more than 30 states and territories permit some form of marijuana use for medical purposes. The implications of these legal changes for bargaining and contract administration are far-reaching; especially when dealing with off-duty use of marijuana.
The UAW's policy has long been that drug testing should only be based on reasonable suspicion of impairment. However, it is important to note that currently available drug testing methods cannot confirm whether someone is impaired at the time of the test; marijuana metabolites can stay in a person's blood, urine, or hair for days and weeks after someone has ingested marijuana, and long after any "high" or possible impairment has dissipated.
Based on a review of state laws, court decisions, and arbitration cases, below is some general information about, and recommendations, on handling bargaining and grievance issues surrounding marijuana use.
- Because state law regarding employment protections and marijuana vary widely, the most effective means of challenging an employer's discipline or termination of an employee for off-duty marijuana use is the just cause provision of the collective bargaining agreement.
- In states where marijuana is legal (either recreationally, or for medical purposes), the Union should attempt to bargain appropriate exceptions into workplace drug policies or programs to ensure that workers are not penalized for off-duty, legal use that has no impact on the workplace.
- Marijuana continues to be a Schedule i controlled substance under federal law. Employers with federal contracts may be required under federal law or regulations to adopt the provisions of the federal Drug-Free Workplace Act, and workers in certain safety sensitive positions, such as over-the-road truck drivers subject to the regulation of the U.S. Department of Transportation, may be subject to mandatory drug testing with no possible exceptions for marijuana. Under these circumstances, it may not be possible to bargain exceptions for off-duty use of recreational or medical marijuana that is permitted under state law.
Any discipline should be solely based on objective, observable evidence of impairment, and not simply on a positive drug test.
- There should not be discipline based on off-duty, legal use. Employers should treat marijuana like alcohol (i.e., no discipline unless there's evidence of impairment on the job or the employee has use or possessed marijuana at work.)
- Some states' medical marijuana laws contain express anti-discrimination or accommodation provisions that bar employers from disciplining registered medical marijuana cardholders who use marijuana off-duty, and the Union should be citing those laws wherever applicable in dealing with the employer.
- The Union should be on the lookout for situations in which an employer may be using a worker's positive drug test or use of medical marijuana as a pretext for disability discrimination, which could violate state law, federal law and/or the non-discrimination provision in the collective bargaining agreement.
- Unless state law so provides, employers are generally not legally required to accommodate a worker's use of medical marijuana. However, employers are barred from discriminating against workers on the basis of a disability, and in some cases, courts have been sympathetic where an employer claims it's firing a worker because of marijuana use or a positive drug test, but there is evidence that the employer is actually using the positive drug test as a pretext for terminating the worker because of his or her disability.
- Above all, the Union should grieve any punishment of a worker who has used marijuana off-duty as being without just cause, regardless of whether the state where the worksite is located has decriminalized marijuana.
Other notable items to consider include:
- It is a well-established arbitral principle that if an employer disciplines or discharges a worker because of off-duty conduct, that action lacks just cause unless the employer can establish a "nexus" between the off-duty conduct and the employer's business. Arbitrators routinely apply that principle to discipline or discharge for off-duty marijuana use.
- Some arbitrators have also held that an employer lacks just cause to discipline a worker solely on the basis of a positive marijuana test where there is no evidence of impairment at work.
- Based on the substantial number of cases in which arbitrators have ruled in favor of workers, any discipline or discharge for marijuana where the worker was not impaired at work and did not use or possess marijuana in the workplace, should be grieved, regardless of the legal status of marijuana under state law.