A growing number of states have legalized both medicinal and recreational marijuana in recent years. As a result, many employees now wonder if they are protected from being fired for using cannabis at work. Medical marijuana is legal in a majority of states and the District of Columbia. States where recreational marijuana is legal include Washington, Oregon, Nevada, Maine, California, Alaska, Colorado, and Massachusetts.
Yet, just because marijuana is now legal in various states doesn’t mean that you can go to work stoned. Many employers have zero-tolerance drug policies. Things are becoming more complicated as certain states issue protection for MMJ users while others fail to do so. This article takes an in-depth look at the complex issue of cannabis consumption in the workplace.
What Issues Will I Face While High at Work?
Data from the Pew Research Center shows that approximately 90% of Americans favor some form of cannabis legalization. Approximately 46% of people living in the U.S. have tried the drug at least once, while 11% have used it within the last month.
Those residing in states where marijuana is now legal must deal with this new reality. However, it’s employers and employees who need to think about this on a more fundamental level. Employees who use cannabis may have to deal with their employers’ regulations and suspicions and the possibility of losing their jobs.
We completely understand that getting high before work may sound appealing. Many people have even claimed that they work better when stoned.
Despite the fact that marijuana is legal in numerous states, it may not be permitted in the work place, or even outside of work.
However, your boss won’t like you being stoned at work, even if you “swear” that it makes you work better. For the same reasons that your employers don’t want you drunk at work, they don’t want you high. Although bosses don’t want stressed employees, they also don’t want them to be incompetent. The real issue at hand is company liability.
For instance, if you are a mechanic, being intoxicated on cannabis on the job is extremely dangerous. Ultimately, not allowing cannabis use at work is a matter of common sense. Regardless of the state or company, being high in your place of employment will almost certainly lead to the termination of your content.
Are Marijuana Users Protected from Being Fired?
The right to use cannabis legally under state law doesn’t necessarily guarantee job protection for exercising this right. Unless the state you reside in specifically prohibits employers from firing employees for off-duty cannabis use, you probably won’t be protected.
Several states with medical marijuana laws – including Arizona, Delaware, and Illinois – have passed laws that prevent employers from firing those who use medical marijuana unless they’re shown to be impaired on the job. If you have a medical marijuana prescription in these states, your employer can’t fire you for off-duty use that doesn’t affect your work.
However, several other states with medical marijuana laws specifically allow employers to fire employees for off-duty use or don’t address the issue. In states without a clear directive, courts ruled in favor of employers until recently.
In Colorado, in 2015, the state Supreme Court upheld the firing of a quadriplegic man who was tested positive for pot on a drug test due to off-the-job use. However, more recent cases, including in federal courts in Massachusetts and Connecticut Rhode Island’s state Supreme Court, have reversed this trend by finding in favor of those employees who used medical marijuana.
Until the U.S. Supreme Court or Congress addresses the issue, the law will remain unclear. Therefore, you need to check your state’s laws or seek advice from an employment lawyer if you have been disciplined or fired for using medical marijuana.
Recreational marijuana laws are still fairly new, but an increasing number of states are considering and passing these sorts of laws every year. However, generally, these laws don’t protect employees from being fired for legal, off-duty recreational use.
Many state laws expressly state that they don’t intend to interfere with the ability of an employer to enforce zero-tolerance drug policies. For instance, the recreational marijuana laws of California state that employers are allowed to test employees and applicants for marijuana use and maintain a drug-free workplace.
Being High at Work
As we’ve briefly discussed above, you can be fired for marijuana use, even if you don’t work while “actively high.” Remember, the plant is still considered a Class 1 drug by the federal government. So, before you take a drug test, you should learn what your company’s policies are regarding cannabis use by enquiring with HR about their drug screenings.
Employers have the right to set rules for non-medical use of marijuana in the workplace in much the same way that they currently set rules for alcohol use. Specifically, employers may prohibit the use of marijuana at work or during working hours and forbid employees from attending work while impaired.
Similar to alcohol use, employees are typically not permitted to consume marijuana while at work. Medical marijuana is a slightly different story.
Rules regarding the non-medical use of marijuana in the workplace may be enforced via the application of the employer’s progressive discipline policy.
Ultimately, companies have a duty to accommodate medical marijuana usage. If an employee has a marijuana prescription, employers should accommodate them. In reality, it should be no different than any other accommodation – whether it is someone with a religious observance or a bad back.
The biggest challenge for employers is understanding when accommodation is required. It’s the employee’s responsibility to make that need known, but this can be difficult from an employer’s point of view. For instance, they can’t ask for a diagnosis or medical history. Rather, they can ask for the limitations on the employee’s ability to carry out their job functions.
Effective communication with employees regarding marijuana use is going to become increasingly important over the next few years. Clear rules and regulations need to be put in place to ensure that both employers and their employees are on the same page regarding being high in the workplace.
Cannabis in the Californian Courtroom
Despite the state’s ‘liberal’ reputation, California law ensures employers can fire an employee for using cannabis, on or off the job.
If you fail a drug test, you could have your contract terminated. Companies in the Golden State can also refuse to hire an applicant who produces a positive drug sample in pre-employment screening.
California has the ‘at-will’ doctrine. It allows employers to fire staff for any reason. The only exception is for reasons deemed unlawful by the state’s legislature and court decisions. Residents of the state have tried to fight back regarding cannabis use outside the workplace but have hit a brick wall.
In 2008, Ross v. RagingWire Telecommunications went all the way to the state’s Supreme Court. Gary Ross, the plaintiff, alleged that RagingWire, his former employer, had discriminated against him for having a disability. The company fired him after he tested positive for weed. According to Ross, he was using medical marijuana to treat his chronic back pain.
The California Supreme Court ruled in favor of RagingWire. It said that employers were under no obligation to accommodate the use of medical marijuana in the workplace. As such, they could legally fire employees for cannabis use.
While marijuana is now legal for recreational use in California, not much has changed. You can still lose your job for using MMJ at home. Also, if you fail a drug screening, you could get fired.
Some States Offer Protection for Weed in the Workplace
Several states have enacted laws that offer protection to employees. In these cases, staff can use MMJ at work to carry out their duties.
In New York, the 2014 Compassionate Care Act (CCA) helps medical marijuana using employees. Certified MMJ users are safe from ‘disciplinary action by a business’ for exercising their right to use medical cannabis.
In Massachusetts, the Supreme Judicial Court made an important ruling. It said that medical marijuana patients fired for a positive marijuana drug test could ‘seek legal remedy.’ The ruling came as part of the Barbuto v. Advantage Sales & Marketing, LLC case back in September 2015. Plaintiffs can claim handicap discrimination, which violates Massachusetts state law.
In the Barbuto case, the Court stated that Advantage Sales & Marketing should have tried to engage in the interactive process. The company failed to determine if Barbuto’s use of weed in the workplace could have been accommodated.
Barbuto had Crohn’s disease and had informed her employer about the legitimate need to use marijuana to treat her condition. When she tested positive for cannabis, the firm fired her as part of its ‘zero-tolerance’ drug policy.
Advantage claimed that because marijuana is federally illegal, it was under no obligation to accommodate its employees. The court explained that Advantage was in no danger of violating any law by allowing Barbuto to use medical marijuana. Moreover, the court ruled that it was unfair for the plaintiff to choose between her job and her health.
Other Noteworthy Cases
Meanwhile, in Rhode Island, the 2017 case Callaghan v. Darlington Fabrics was also a victory for medical marijuana users. The state’s Supreme Court ruled that an employer’s enforcement of its drug testing policy violated Rhode Island’s anti-discrimination provisions regarding its medical marijuana law. On this occasion, it was because a company dismissed an applicant for using medicinal cannabis.
The plaintiff, Christine Callaghan, was referred to Darlington as she searched for an internship. She openly admitted that she carried a medical marijuana card when told about the upcoming drug test. Callaghan also stated that she would fail the test as a result. Darlington’s HR coordinator, Karen McGrath, informed Callaghan that she would be ‘unable to hire her.’
Additionally, things are looking up for residents of Maine who enjoy marijuana during leisure time. In February 2018, it became the first state to protect employees who use cannabis outside work hours. The Maine Department of Labor ruled that cannabis should be removed from employers’ list of substances tested.
The new Maine law also states that companies cannot refuse to hire someone for consuming marijuana outside the organization’s property.
The Department has made an effort to offer protection for companies too. Employers can implement a ban on marijuana use in the workplace. Also, they are free to discipline anyone who breaks the rules.
However, a positive drug test is no longer enough to prove that a staff member was under the influence of cannabis while at work. This is excellent news because urine tests often show marijuana days after a person uses it. Theoretically, you could use cannabis over the weekend. If you have to take a drug test on Monday, THC metabolites may show up and cost you your job.
Cannabis Use ISN’T Treated the Same as Alcohol Consumption
Marijuana is different from alcohol. A test can detect it in your body for weeks after use. An employee could use it over the weekend, and drug tests could still detect marijuana the next week, even when the user is no longer impaired.
In California, even companies with a ‘Don’t Ask, Don’t Tell’ policy can fire anyone who tests positive for marijuana in a drug test. The problem here is that these tests don’t show when a person used cannabis. Therefore, the company doesn’t know if the employee was under the influence of marijuana in the workplace.
It seems unfair to fire someone for using medical marijuana at home. This is especially the case in states where it is legal for both recreational and medicinal use.
Imagine the outcry if a company fired someone for a positive alcohol test when the person drank a glass of wine the previous evening!
In 2015, the Colorado Supreme Court ruled that companies can still fire staff who use medical marijuana. It held that cannabis use is unlawful under federal law. Therefore, medical marijuana isn’t ‘lawful’ under the state of Colorado’s off-duty conduct law.
In February 2020, Colorado legislators voted against a bill that aimed to protect employees. HB 20-1089 would have prevented companies from firing staff who used cannabis off the clock.
Cannabis-Friendly Companies Already Exist
Colorado has become a model for marijuana legalization, adding 18,005 full-time jobs and $2.4 billion to the state’s economy in 2016 alone. It could also prove to be the testing ground for a wider acceptance of marijuana use in the workplace.
Colorado companies High There! (a social network for weed users), Mass Root and Flowhub (a software provider for the cannabis industry) allow their employees to bring marijuana-infused beverages and edibles to work.
Kyle Sherman, the co-founder of Flowhub, told CNN, “If it helps our employees get work done, then we don’t care if they consume at work.” Although only anecdotal evidence exists so far, it does suggest that it’s working for them. To date, the company has processed hundreds of millions of dollars in marijuana purchases and gained additional investor funding.
These companies are open-minded outliers for now. However, an old survey reported that a fifth of small business owners would allow employees with medical marijuana prescriptions to use MMJ at work, demonstrating that mentalities might change. One wonders if and when larger organizations will adopt the same mindset.
Final Thoughts on Being High at Work
The changes to the legal status of weed have brought about unique and unprecedented challenges for employers. They may need to change their policies drastically to accommodate employees, especially those who use marijuana for medicinal purposes.
Zero tolerance workplace policies for cannabis use or possession will likely become unenforceable. We also expect to see employees begin negotiating or requesting coverage under health and benefits plans for medical marijuana prescriptions. Ultimately, in time, many uncertainties and issues surrounding the use of marijuana will likely be litigated.