Ask The Lawyer, Can I sue the company if it doesn’t ensure my safety?

QUESTION: I work at a shop where we routinely work with heavy metal assemblies, cutting and welding tools, drive forklifts and use cranes. Improper use of these machines is extremely hazardous. The problem is that several of my co-workers smoke pot (and I suspect one of the supervisors does too). Now that Michigan voters have decided to make recreational use of marijuana legal, I’m concerned my co-workers will see it as a license to smoke anytime at work. Management does not insist on drug testing every time there is an accident. I’m concerned that my safety is at risk. What are my legal rights here? Can I sue the company if it doesn’t ensure my safety?

ANSWER: First, one thing should be made very clear: Michigan’s new law – which becomes effective 10 days after the vote is certified (probably about one month later) — does NOT give pot smokers any right to smoke pot at work. If your employer has an anti-drug policy, smoking pot is still a violation of that policy – even if pot is legal. Most work places would fire an employee for showing up drunk, or drinking a beer on the job; employers have exactly the same right to discipline any worker who shows up stoned or smokes a joint at work. In fact, employers are still within their rights to prohibit an at-will employee’s marijuana use on or off the job, even for medicinal purposes. (Note that an employer who fires a worker for medicinal use of marijuana may be responsible for paying them unemployment.)

If the company at which you work has an employee handbook, read it. What are your employer’s policies on drug use? If your co-workers are violating the policy – and very likely also violating the law – by smoking on the job or working while under the influence, they should be reported. When you report, do so in writing, using a form which will provide proof that your letter/email/fax was sent and received. This is required both to create a record that your employer has been informed of the problem, and to protect you from retaliation. If you work in a union shop, you should contact your union representative to find out what your rights are under your contract.

Second, the new law does not give pot smokers the right to light up anywhere they please. Restrictions on where marijuana may be consumed are even more stringent than those for cigarettes – and more analogous to the laws on alcohol consumption. While it is legal to light up a Marlboro on a public street; it will not be legal to light up a doobie and take a toke. Section 4(e) of the now-passed initiative forbids consuming marijuana in a public place or smoking marijuana “where prohibited by a person who owns, occupies, or managers the property.” A landlord can prohibit smoking marijuana on his property (but “may not prohibit a tenant from lawfully possessing and consuming marijuana by means other than smoking”); your employer almost certainly prohibits the use of marijuana on the worksite.

And, of course, the law only allows recreational use of marijuana to people who are at least 21. If your coworkers are under 21, they are violating the law. In fact, technically, anyone who consumes or possesses marijuana is violating U.S. law – marijuana is still classified as a Schedule 1 drug – along with heroin — and is illegal under federal law.

If your employers are aware that workers are operating heavy equipment and motorized vehicles while under the influence of marijuana and choose to take no action, despite the evident risk, they may be in violation of the Occupational Safety and Health Act (OSHA). Section 5(a)(1) of the Act provides that employers must protect workers from “recognized hazards that are causing or are likely to cause death or serious physical harm.” While this “general duty” clause is open to interpretation, it has been held to cover situations in which an employer failed to protect workers from a co-worker with a propensity for violence who had made specific threats against other employees, and may apply in your case. You can contact OSHA to make an anonymous report at 1-800-321-OSHA.

In the unfortunate event you are injured at work, however, your exclusive remedy (with a very few exceptions) remains workers’ compensation. While you would have no automatic right to sue your employer because of an injury incurred during the course of employment in most instances, you could be eligible to receive medical coverage and paid time off to recover, depending the extent of the injury. Exceptions allowing an employee to sue the employer outside of workers’ compensation actions are available in limited circumstances. Employers are required to carry workers’ compensation insurance. Check your union contract or employee handbook to find out how your employer handles worker’s compensation claims.

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By: Daniel A. Gwinn, Esq. Daniel A. Gwinn GWINN LEGAL PLLC 901 Wilshire Drive, Suite 550 Troy, MI  48084 (248) 247-3300 (248) 247-3310 facsimile