By Sharon Bottcher
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
Do words matter? Yes, without a doubt. A single word can drastically change the meaning of a sentence. Precise, accurate use of words is essential for any type of communications. Words are used to advocate, inform, persuade, and instruct. Mark Twain famously said about word choice: “The difference between the right word and the almost right word is the difference between lightning and lightning bug.”.
The Importance of Wording in a Policy
A successful drug and alcohol testing program starts with a good policy. The question is what makes a good drug testing policy? A good policy starts with a clear description of its intention, the prohibited behavior as well as the consequences for violations of the policy. It should further describe who is subject to the policy, under what circumstances testing will occur, and how it will be conducted. At the same time, it must take into consideration the applicable federal and state laws.
A weak policy is unclear, confusing, misleading, and is not customized to meet the objectives of the program. Writing an effective policy requires a strong understanding of the drug testing industry and knowledge of the laws regulating testing. Policies should not be written by those that are not experts in the field of workplace drug testing. Knowledge of all elements of the drug and alcohol testing industry and more need to be incorporated into the written policy.
To bring the potential issues of a weak policy to life the below court cases are great reminders that the process and procedures incorporated in the program must be represented in the language written in the policy.
Medical Marijuana and Unemployment Benefits
In the state of Pennsylvania, in The Pittsburgh Water and Sewer Auth. v. Unemployment Comp. Bd. of Review, the court ruled unemployment benefits were justified after a medical marijuana user was terminated by his employer for a positive drug test.
The employee was employed as a customer service representative for four months. The Pittsburgh Water and Sewer Authority maintained a drug-free workplace policy that prohibited the use of illegal drugs on- or off-duty, including marijuana.
The policy, however, permitted the use of legal drugs that did not affect safety or job performance and defined “legal drug” as “prescription medications. . .that have been legally obtained.” During the employee’s orientation, human resources explained that if an employee were selected for a drug screening, the employee would have an opportunity to verify his or her prescriptions that may impact the drug test results. If the employee demonstrated the drug was lawfully prescribed, the test results would not be reported to the authority.
Upon request of the authority, the employee submitted to a drug test and tested positive for marijuana. The employee then submitted a copy of his medical marijuana patient identification card to the Medical Review Officer (MRO) who reviewed the positive drug test result. The MRO forwarded the positive drug test result to the authority. The authority terminated the employee on the grounds that marijuana is illegal under federal law.
The employee filed for unemployment benefits and the claim was initially denied on the grounds that he violated the authority’s drug policy. On appeal, however, the Unemployment Compensation Board of Review (UCBR) overturned the denial and determined that the employee was not disqualified from benefits under Section 402(e.1) of Pennsylvania’s Unemployment Compensation Law (relating to discharge for “failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy”).
The UCBR held that the employer’s policy stated that an employee’s positive drug test result would be excused if the employee possessed a prescription for lawful medication, and if the employer did not intend for that provision to cover medical marijuana, the policy should have said so.
In affirming the UCBR’s decision, the court determined that the applicable unemployment compensation laws only require compliance with the employer’s drug policy. In this case, the authority’s policy regarding the use of medical marijuana was ambiguous. Since the employee provided the MRO with his valid patient identification card to explain his use of prescribed medical marijuana, the court could not conclude that the MRO’s reporting of the employee’s drug test as a positive result was in accordance with the authority’s drug policy. Accordingly, the court held the UCBR did not err by granting unemployment compensation benefits to the employee.
Cannabidiol (CBD) and Unemployment Benefits
A similar case in Pennsylvania was decided in 2020 regarding the use of over-the-counter CBD. The company, Washington Health System, had a policy that prohibited “being under the influence of drugs or having drugs in one’s system while at work….” The policy also required that:
“all employees disclose to the employer when taking any drug that poses a significant risk of substantial harm to the health or safety of the individual or others, or when taking any drug that renders the employee unable to perform the essential functions of the job.”
An employee disclosed that she was taking CBD oil, purchased over the counter, to manage symptoms related to cancer. Subsequently, she was informed that she tested positive for marijuana and her employment was terminated.
After being denied unemployment compensation, the employee appealed. The appellate court ruled that she was entitled to unemployment compensation, in part because the employer was not able to prove that she violated the employer’s workplace policy. There was no proof that the CBD oil affected her performance at work in ways prohibited by the policy. Furthermore, the CBD oil that the employee used was not proven to be a controlled substance.
Conclusion
These two cases are prime examples of the importance of a carefully written drug-free workplace policy. Employers should review their drug and alcohol policies at least annually or as the employer expands to new states or makes changes to the testing program. And, as part of that review process, ensure the policy says precisely what it is meant to say and is free ambiguous language that can lead to exposure to legal liability and a legally indefensible situation.
Looking to update your drug-free workplace policy to ensure compliance with all applicable state laws and federal regulations? Contact the Current Consulting group at 215-240-8204 or policy@currentconsultinggroup.com to learn more about our custom policy creation services.
