Page 14 - IEC Insights Jan-Feb2019

FEATURE

Focus on job site safety. Protecting intoxication at work, the expansive
adoption of medical marijuana laws by the
states poses significant legal and practical
the safety and health of employees issues for construction industry employers.

and the public should be every OSHA’S GENERAL

DUTY CLAUSE
contractor’s primary focus. OSHA does not have a specific standard
that prohibits drug use or impairment
from drug use on a job site. However,
the General Duty Clause, Section 5(a)
to stimuli and danger, decreased ability to Another problem arises from lagging (1) of the OSH Act, may be applicable:
judge distance and space, and impaired technology. Use of marijuana and “Each employer shall furnish to each
ability to perform complex tasks. impairment is very often difficult of [its] employees employment and a
These negative effects could be disastrous to determine because there is place of employment which are free from
recognized hazards that are causing
on a construction job site. The problem no reliable test that conclusively or are likely to cause death or serious
with determining whether an employee determines when someone is “high” physical harm to [its] employees.” The
is potentially subject to these negative from marijuana. A positive drug test General Duty Clause is intended to protect
effects on a jobsite is there is currently does not necessarily indicate that employees when there is no particular
no reliable metric for determining when the person is currently intoxicated standard that applies. For example,
a particular level of THC from marijuana or impaired from the substance. OSHA has targeted such recognized
usage impairs the user and for how unregulated workplace hazards as
long that user remains impaired. THC combustible dust and internal traffic
and other psychoactive components EXPANDING LEGALIZATION control plans in highway work zones.
stay in the body much longer than OF MARIJUANA – BY To prevail on a General Duty Clause,
alcohol. Studies regarding the duration OSHA must establish these elements:
of impairment show the duration of THE STATES
impairment from marijuana use may be Marijuana remains illegal under federal a. The employer failed to keep
longer than previously known and could law as a Schedule I Narcotic under the the workplace free of a hazard
be up to 24 to 48 hours. Chronic use Controlled Substances Act of 1970 (CSA). to which employees of that
of marijuana may have long-term brain Under the CSA, it is illegal to manufacture, employer were exposed;
effects that could impair construction sell, distribute, or possess marijuana and b. The hazard was recognized;
workers even if they are not actively no physician may prescribe marijuana
using on the jobsite. A positive drug test use. However, 30 states have passed laws c. The hazard was causing or
does not necessarily indicate a person legalizing the medical use of marijuana was likely to cause death or
1
2
is currently intoxicated or impaired. under their laws . Nine states and the serious physical harm; and
District of Columbia have also legalized d. There was a feasible and useful
recreational use. These lists seem to grow method to correct the hazard.
EXPANDING USE AND with every election, so contractors should It’s conceivable OSHA could attempt
continue to monitor developments.
ACCEPTANCE OF to use the General Duty Clause if a
MEDICAL MARIJUANA This poses a perplexing legal issue for medical marijuana use is a factor in a
contractors (and probably a few law workplace accident. Time will tell.
Marijuana usage is broad-based, with professors as well): how do you resolve
no direct connection to age. In a recent a conflict between federal and state law
survey, 31.6% of people 18-25 used on such a critical issue? For this article,
marijuana in 2013. But, the largest growth I will keep it simple: focus on job site MUST AN EMPLOYER
among marijuana users is in the 55-64 safety. Protecting the safety and health ACCOMMODATE MEDICAL
age group with an increase of 455% from of employees and the public should MARIJUANA USAGE?
2002 to 2014. Employers should not just be every contractor’s primary focus.
be paying attention to this risk with their Not under federal law, but possibly
millennials. Older workers (with growing Although there is generally no legal under some state laws. Indeed, one
medical issues related to aging) are protection for use, possession, or of the key questions presented by
increasingly using medical marijuana. medical marijuana laws is whether

12 Insights Magazine | January/February 2019 | www.ieci.org