Federal law says that pot is as dangerous as heroin, more addictive than cocaine, and has no accepted medical purpose. Yet 23 states and DC have legalized medical marijuana in some form. Alaska, Colorado, Oregon, Washington, and D.C. have also de-criminalized recreational marijuana use. For the average worker – and their employers – this federal-state law paradox can have huge impact in the workplace.
Many employers, for instance, still choose to conduct workplace drug testing in various contexts (such as making it a condition of an employment offer), and “zero tolerance” policies remain valid. Despite numerous attempts to challenge that standard, pro-marijuana laws have had little impact on an employer’s ability to drug test or to terminate employees for marijuana use.
- In Ross v. Ragingwire Telecommunications, Inc., California’s highest court found that the state’s medical marijuana law protects individuals only from criminal prosecution, ruling in favor of an employer who declined to hire an injured vet taking medical marijuana to treat chronic back pain after he failed his pre-employment drug test.
- Oregon’s Supreme Court, in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries similarly found for an employer who fired a heavy-machine operator who had used medical marijuana to treat muscle spasms during the two weeks before a drug test.
- In 2011, in Roe v. Teletech, Washington State’s highest court upheld the termination of a medical marijuana user for a non-safety-sensitive position, even when she disclosed her valid prescription before being asked to take the pre-employment drug test. The court rationalized there was no clear public policy protecting employees from termination even for lawful home use because Washington’s law provided only a defense to criminal prosecution.
And just last June, in Coats v. Dish Network, LLC, Colorado’s Supreme Court upheld the termination of a quadriplegic for violating company policy after he failed a random workplace drug screening due to his off-duty use of marijuana for pain management. Noteworthy here is that the court reached this result even though Colorado law also protects workers from being fired for lawful off duty conduct. The court decided that by “lawful” off duty conduct, the Colorado legislature meant both state and federal laws. A handful of states have lawful off-duty conduct protection laws similar to Colorado’s, although only Colorado so far has addressed this issue head on.
You may wonder why none of these employees won with a disability discrimination approach. In short, their drug use cost them this claim. It is long settled under the Americans with Disabilities Act – another federal law, mind you – that active illegal drug users fall outside its protections. States to consider this issue under their own anti-disability discrimination laws have concluded the same. And even though employers need to provide reasonable accommodations to employees with disabilities, no court has held (yet) that this includes accommodating off-duty marijuana use.
As for a recreational user, if courts have favored zero tolerance policies in situations involving medical marijuana use by sympathetic employees, it is not a stretch to predict that he/she lacks a strong legal challenge a termination for a failed drug test.
Lest you view this issue as an employee-only quagmire, the federal-state contradiction also leaves employers in a bind: Relaxing your drug-free workplace policy means risking accusations of condoning illegal activity. While avoiding drug testing altogether may help alleviate that risk, this option carries its own problems, like a possible increase in workplace accidents, third party lawsuits, or the loss of customer confidence. Would you want a forklift operator, or the aesthetician waxing your bikini line, working while high?
And despite hearing that such a test exists, this writer has yet to have a reputable lab confirm that there is an effective test that can distinguish between weekend and weekday use. Such a test is likely of no little practical use anyway without any tolerable legal limits, such as exists for driving under the influence. With no such test, employers with strong legitimate business reasons to prohibit workplace marijuana use will likely chose the easier zero tolerance path.
No matter what the employer chooses to do, the wise and practical employer will take steps to carefully communicate its policy, rather than leave its workforce in the legal weeds.
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