Marijuana in the Workplace
Legalized Recreational Marijuana
In 2014 Washington state became the first state to legalize the recreational use of marijuana. For Washington, this means that any individual over the age of 21 can purchase marijuana from a retail outlet, often referred to as a dispensary, without requiring a medical card as long as they are in possession of less than an ounce. Four days after Washington legalized marijuana, the state of Colorado followed.
Where is Recreational Marijuana Legal?
While Washington and Colorado legalized first, recreational marijuana is legal in a total of ten states including Alaska, California, Maine, Massachusetts, Michigan, Nevada, Oregon, and Vermont, and the District of Columbia. In addition to the ten states where recreational use is fully legal, 13 other states have decriminalized or implemented a form of reduced punishment including Mississippi, Nebraska, and North Carolina where recreational use is still fully illegal.
Marijuana at Work
As the marijuana laws have changed since 2014 so has the employer-employee relationship as it relates to marijuana at work. Employers are currently faced with a new set of challenges to create safe and productive workplaces causing employees to consume with caution. They must understand the risks involved with both recreational and medicinal use. The best way is to understand, in addition to state law, an employer’s policy regarding marijuana and drug testing.
Medical Marijuana in the Workplace
Similar to recreational marijuana, medical marijuana is legal in 33 states and the District of Columbia. The primary difference between recreational and medical marijuana is that medical marijuana is prescribed by doctors for use in treatment. Medical marijuana is common for severe pain and chronic pains and considered a much safer alternative to opioids. Prescription of medical marijuana has forced employers to take a closer look at their policies regarding their employee’s use.
The Wall Street Journal has reported that employers believe “too little thought was put into the impact legalization would have on hiring and workplace safety.” Their concern is a disconnect between the legalization process, and the implementation process, which has caused concern for employers trying to regulate their workplaces. They also reported that as a result of the new laws, some employers “are dropping marijuana from their screening tests or raising the threshold for failure.” However, this isn’t the case for all employers, and employees should proceed with caution.
Can You be Fired for Medical Marijuana?
As we reported in our piece Top 10 Illegal Interview Questions, a prospective employer cannot ask about your prescriptions. Under federal law, both medical and recreational use of marijuana is still illegal. The two acts that can offer protection, the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), do not accommodate medical marijuana use. Individual states are addressing employee protections, including Arizona, Illinois, and Massachusetts. It is best to check with applicable state laws before use.
Smoking Weed at Work
Individuals experiencing severe or chronic pain may need to return to work while they are still recovering or dealing with injuries. Recreational use of marijuana is prohibited in all workplaces as it is required to be consumed in private. However, the rules around medical marijuana and employment are less clear. Generally speaking, it is best to keep marijuana use and your job separate.
Can You Get Fired for Smoking Weed?
While 33 states (and counting) allow medical marijuana use, none of them permit you to be impaired at work. According to Nolo, one of the internet’s most comprehensive legal sites, “employers may fire employees for being under the influence of, or impaired by, marijuana at work or during work hours.” Despite legalized states that have provisions in state law for off-duty use; these states also prohibit work hours use or impairment.
Random Drug Testing at Work
While it is a commonplace for private companies to drug test applicants, random drug testing of existing employees is different. Each state has laws governing the rules of random drug testing at work. Random testing is not permitted in every state. Employers design drug testing systems around job functions, size of companies, risk, and other factors that can impact performance.
How Often do Companies do Random Drug Testing?
Random drug testing varies from industry to industry. The most common – and permissible – time to test an employee for drugs is after an accident occurs. Companies truly invested in keeping their workplaces safe will implement drug testing practices at random. In this case, employees would not be able to anticipate or prepare for random drug tests, thus ultimately ensuring the tests act a natural means of deterring use.
Drug-Free Workplace Act
The Drug-Free Workplace Act was established in 1988 for employers of federal grantees and federal contractors. It does not impact any employers outside of those federal requirements. Under the act, employers must create a drug-free workplace and a general awareness program. The workplace act itself does not require employers to randomly drug test, terminate, or punish any employees. Instead, it requires transparency between the employer and government in that these incidents need to be reported.
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