You, your employees, and the legalization of marijuana
- 12/6/2016
- Kevin Rosenquist
Ah, the old weed debate. It’s been talked about for
generations but the difference today is that these discussions are resulting in
changes to state laws. Eight states have legalized both recreational and
medical marijuana and 12 states now have medical marijuana and
decriminalization laws. More are sure to follow. Like it or not, times they are
a-changin’. The debate, as well as the changes, force us all to ask ourselves
some real questions. Should it still be considered a schedule 1 drug alongside
heroin and LSD? Is it a gateway drug? Is it safer than alcohol? How much for an
eighth?
Just kidding on that last one. The big question that is
being asked by HR professionals and business owners is one I get quite
frequently: “can we still drug test for marijuana and require a drug free
workplace.” The answer is “yes…for the most part.” Marijuana is still federally
illegal. This confuses a lot of people. It’s federally illegal but states do
have their own laws regarding its use. The thing that really trips folks up is
that, while recreational or medicinal use may be legal where a person lives, a
failed drug test can still result in termination or being denied a job.
One of the biggest pro-marijuana states is our home state,
Colorado. And, not surprisingly, one of the biggest court rulings on this came
from the Colorado Supreme Court. DISH Network fired a quadriplegic employee,
Brandon Coats, for testing positive for marijuana despite him having a medical
marijuana card. He maintained that he was never under the influence of the drug
while at work. DISH never disputed that but, because of their zero-tolerance
drug policy, still fired him. Coats sued citing that, under Colorado state law,
it is considered discriminatory “for an employer to
terminate the employment of any employee due to that employee’s engaging in any
lawful activity off the premises of the employer during nonworking hours.”
The word in that state law to pay
attention to is “lawful”. The case went all the way to the Colorado Supreme
Court and the Court ruled in favor of DISH, stating that Coats’s marijuana use
can’t be considered lawful because it is still federally illegal. The ruling
was a big blow to those looking to reform drug policies around the nation. But
the bottom line is that, in Colorado, an employer is still allowed to require a
drug free workplace and test for it.
There are other states that have
their own laws but generally those pertain to the testing of current employees.
Some states don’t allow for random or blanket tests of current employees,
instead requiring employers to have some sort of cause like the employee was
displaying behaviors that resulted in reasonable suspicion or the job carries a
safety concern if performed by someone under the influence. Pre-Employment
testing is still allowed provided the employers follow their state’s rules
about procedures and giving proper notice.
So,
bottom line, laws are softening in regards to the use of the whacky tobaccy.
But employers are safe to continue their drug free workplace policies. At
least, for now. Check out https://www.aclu.org/other/state-state-workplace-drug-testing-laws
for a great listing of all state laws as they pertain to workplace drug testing
put together by the ACLU.
