How Will New Marijuana Laws Impact Small Business Employment Policies?

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A grand total of eight states have new marijuana laws on the upcoming November ballot, ranging from recreational cannabis in California to restricted medical marijuana in Florida. And if small business owners aren’t keeping an eye on pot referendums in their state, they should be.

If recreational weed is legal in California, does that mean employees can have a toke at lunch? If a staff member has a prescription, can she use in the office? What happens to your small business’s drug policy when state marijuana laws change?

Enforceable Workplace Policies

New marijuana initiatives like California’s should not impact an employer’s right to prohibit marijuana use, pointing out that the law “expressly states in the ‘Purpose and Intent’ section that it is the intent of the Act to ‘allow public and private employers to enact and enforce workplace policies pertaining to marijuana.'” California courts have sided with employers who fire or refuse to hire someone who tests positive for pot.

Similar rulings have occurred in states that have already legalized marijuana, even for recreational use. The Colorado Supreme Court ruled that Dish Network was allowed to fire a quadriplegic telephone operator who failed a random drug test, despite the fact that recreational weed was legal in the state at the time, the employee had a medical marijuana prescription to treat his violent muscle spasms, he only used medical marijuana while he was off the clock, and the state even had a statute making it illegal to fire an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.”

That and other cases have cited the federal prohibition on marijuana as protection for employers, so you’re company drug policy is probably fine.

Crafting a Pot Policy

California’s statute — which is likely to pass, according to recent polls — is clear in carving out an employer’s right to maintain a drug and alcohol-free workplace and to have policies prohibiting the use of marijuana by employees and prospective employees. But not every state law may be as clear, and you’ll want to be as transparent with your employees as possible regarding your company’s drug policy.

[This article has been modified, from an original article posted by Christopher Coble, Esq. on August 12, 2016.]

Interesting Lawsuit of the Month: Filmmaker Sues Diving Company for Shark-Attack

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In June 2015, Elle Specker a filmmaker went on an expedition with Mako Shark Diving, a San Diego company that advertises “cage less snorkeling/freediving shark trips, led by shark behavioral expert & shark feeder Michael Kazma.” Specker wanted to film underwater shark activity. A shark bit her, and she is suing.

The “assumption of risk” doctrine recognizes there are things people like to do that are inherently dangerous, and they generally can’t sue when they get hurt while doing them. For example watching some sports, like baseball, which involves the risk of being hit by a foul ball. In California, for a long time the doctrine only applied to sports, but in 2012 the California Supreme Court expanded it. Now it also applies to “other recreational activities” if they involve “an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity.” If you get hurt while engaging in an inherently dangerous activity, you can’t win a case for negligence if the jury finds you assumed the risk to begin with.

You can’t eliminate the risk of a shark attack without altering the fundamental nature of that activity. Therefore it appears Specker assumed the risk of a shark bite when she entered the water and filmed sharks without being in a cage. If you enter an area full of sharks and start feeding them causing you to get bit, it seems like you, not the owner of the boat are probably responsible.

[This article has been modified, from an original article posted by Lowering The Bar on August 10, 2016.]

Quote of the Month

It is better to invent the future then predict the future. – Alan Kay, Computer Scientist Pioneer

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