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Drugs and Guns

Worker shortages, relaxed views on drug use in the context of an opioid abuse epidemic, and issues related to gun violence are creating new challenges in workplaces in the United States. Record-low unemployment and increasingly limited immigration options are making qualified candidates more difficult to find. The movement to legalize marijuana has taken hold in America; despite marijuana’s use remaining a federal crime, there are nine states and Washington D.C. that have legalized its use. And concerns over both workplace gun violence and individual gun rights have intensified. These cultural and economic factors present challenges to employers seeking to respect individual rights while maintaining safe and lawful workplaces.

For example, these forces have led many employers to scale back drug testing applicants (or at least testing for the use of marijuana). Exceptions remain; industries whose businesses involve operating heavy machinery and companies that contract with the federal government continue to drug test for safety purposes and to comply with federal government contract terms. But for employers who have forgone (or are considering forgoing) employee drug testing, it would be wise to investigate possible liabilities arising from employee errors arising out of drug use or if it is later shown the employee had used drugs. Recruiting and retaining talented employees in a competitive workforce environment is crucial to a company’s success, but employers should think carefully before scaling back procedures designed to minimize potential liabilities.

In a number of states, the law protects an employee’s ability to bring guns onto employer property, particularly when those guns are being stored in a vehicle parked in a company parking lot. West Virginia is the most recent state to weigh in on this issue with its gun-in-the-trunk law going into effect in June. But these laws do not necessarily affect employer liability. The Supreme Court of Georgia recently held that Georgia’s “Bring Your Guns To Work” law did not insulate an employer from liability when one of its employees brought a gun on a customer visit and accidentally wounded the customer. Employers should review their workplace security for vulnerability to gun violence and strongly consider active shooter training for employees. 

Consistent with the divide in U.S. politics, there is little overlap between those states with both looser drug enforcement laws and stronger gun protection laws. All states however are impacted by the opioid epidemic. The Centers for Disease Control and Prevention has stated that 42,000 Americans died in 2016 due to opioid abuse. The impact of this epidemic on employers is obvious and potentially substantial, including significant disruption to the workplace and their workforces. Employers should consider instituting robust employee assistance plans to help employees with symptom recognition for both their own and others’ addictions.  

With the shortage of workers today, employers need to consider the impact of drugs and guns on the workplace and the availability of employees to fill open positions.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.