First it was just for “medicinal”
use. Now it’s expanding to “recreational” use. Either way it is causing
headaches for employer in pro-marijuana states. 23 U.S. states have legalized
medical marijuana, with Colorado and Washington voting to legalize recreational
marijuana in 2012 for those 21 and older. Voters in Oregon, a state which
allows medical marijuana use, rejected recreational use in 2012. You can see a
list of these states at http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
The question is how do these
statutes affect employers? Answer is it depends on the state. The Colorado law
states that “nothing in this section is intended to require an employer to
permit or accommodate the use, consumption, possession, transfer, display,
transportation, sale or growing of marijuana in the work place or to affect the
ability of employers have policies restricting the use of marijuana by employees.”
The Washington statute does not mention using marijuana in the employment
setting. Connecticut’s law bans employers from acting against workers who use
medical marijuana off-duty.
Federal law prohibits marijuana
use, whether medicinal or recreational. The Department of Transportation does
not accept medical marijuana for medicinal use. Since marijuana is illegal
under federal law, institutions that receive federal funds will still be
subject to testing consistent with the federal Drug Free Workplace Act.
The handful of court decisions
interpreting these laws have come down on the side of the employer. They can
discipline, terminate, or not hire employees who test positive for marijuana,
even if properly used under state law. However, it will be interesting to see
how these laws are interpreted either by way of state regulations or court
decisions. In a state like Connecticut, where you can’t fire somebody for
non-workplace use, what if somebody smoked a ton of weed one evening, and they
come to work fuzzyheaded, would an employer have the right to test them? Or
suppose they smoked on the way to work or during a break on their “own” time?
There are no definitive answers to these questions and there may not be for
years.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.