Marijuana and Workplace Laws

A former Eugene, Oregon television news anchor said she was recently fired from her job for testing positive for marijuana.  25-year-old Cyd Maurer said she was driving a work vehicle in May when she got into a fender bender on her way to a live shot.  Reports show her employer immediately told her to take a drug test and she tested positive for marijuana in her system.  She told her employer that she had smoked marijuana two days prior to the accident.

On July 1, recreational marijuana became legal in Oregon for people 21 and older. Workplace laws regarding pot, however, did not change. That means if your employer has a policy that forbids marijuana use or drug tests for it, you can still be fired for smoking it, even if you use it for medical purposes.

Lawful Implications

Recently, more and more courts across the United States are dealing with issues involving medical or recreational marijuana in the workplace. Colorado’s Supreme Court recently ruled a medical marijuana patient could be fired after failing a drug test, even though recreational pot is legal in the state. The case has big implications for employers and pot smokers in states that have legalized medical or recreational marijuana. Colorado became the first state to legalize recreational pot in 2012.

In its decision announced earlier this month, Colorado’s highest court found:

“The term ‘lawful as it is used in [state employment law] is not restricted in any way… therefore an activity such as medical marijuana use that is unlawful under federal law is not a ‘lawful’ activity under [state law].”

The high court also found that the federal government’s Controlled Substances Act lists marijuana as a Schedule 1 substance, which means the law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision.

Workplace Safety & Marijuana Use

Washington, DC and 23 other states do allow the use of marijuana and four states, including Oregon and Colorado, allow recreational marijuana use.  So, how does this law affect safety at the workplace and how does it impact drug-free workplace policies and employee safety?

Some states require the employer to prove the employee was impaired while using marijuana in order for the firing to be legal.  Employers can have a zero-tolerance drug policies and they can then enforce these policies by firing employees who violate them.  However, the employer MUST apply the same policies equally to all employees and proper documentation must be maintained.

What Should Employers Do?

Here are some suggestions for employers in dealing with legalized marijuana:

  1. Review your state laws on discrimination against marijuana users.
  2. Review your drug-use and drug-testing policies
  3. Be aware that the presence of THC (the active ingredient in marijuana) in the body may not indicate someone is presently impaired.  Experts say an employee may only feel the affects of marijuana for a couple of hours, but THC can actually be detected for several days, or even weeks, if the employee is a frequent user.
  4. Train managers about confidentiality relating to sensitive employee information- including drug-test results.

Remember, if you are a zero-tolerance workplace, you should be prepared to answer some additional questions.  For example, how will you handle employee recreational use that is permitted by law?

As more states pass laws about medical and recreational use, things will get a bit more complicated.  Employers should closely monitor developments in their state and be prepared to remind employees of their expectations and requirements.

What do you think? Should workplace laws regarding legal pot change?  Comment in our HSE Press Forum.