Nearly half of U.S. states are considering legalizing some sort of marijuana use, either for medical purposes or recreation. The legalization of cannabis in Colorado and Washington has sparked conflict between employers attempting to maintain drug-free workplaces and workers who say they are being punished for off-duty pot use. Many legal experts say the legislation does not protect employees in workplaces with zero-tolerance drug policies.
Current marijuana laws: too much contradiction
Colorado law currently prohibits firing workers for legal, off-duty activities. However, Colorado courts have granted employers the right to fire employees for marijuana use outside work on the grounds that, while legal on a state level, marijuana use remains illegal on a national level as a federally regulated substance.
Since tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana, can stay in a person’s system for weeks, marijuana use presents a challenge for employers wary of impaired workers and for medical users who might, for example, use small amounts of marijuana for migraines, rendering them relatively unimpaired but nonetheless unable to pass a drug test.
Must employers accommodate medical marijuana use?
Colorado’s law is “not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or affect the ability of employers to have policies restricting the use of marijuana by employees.”
That is difficult to enforce. Connecticut, Maine and Rhode Island, for instance, prohibit organizations from discriminating against workers based on their status as medical marijuana users. Arizona and Delaware actually bar employers from discriminating against registered medical marijuana cardholders testing positive for marijuana, unless employees are “impaired in the workplace,” an exception which is difficult to define. Employers may need to consider a shift toward testing for impairment rather than marijuana use. Currently, however, there is no scientific, on-the-spot test for impairment.
A Colorado Supreme Court case involving a paralyzed man who is suing his former employer could set new precedents. DISH Network fired the customer support telephone operator after he tested positive for marijuana; he sued the company, arguing that his off-the-job marijuana use should be protected by Colorado’s Lawful Off-Duty Activities Statute. The statute prevents companies from firing employees for participating in activities off the clock that are legal, such as smoking cigarettes or drinking. DISH argues that marijuana use cannot technically be considered lawful while cannabis remains federally illegal.
It is a messy situation: employers that cannot discriminate against cannabis users can still fire “impaired” employees if they can legally prove impairment. It is certainly best to consult with a lawyer in these situations, whether as an employer or employee.