Legalization & Marijuana Use in the Workplace: Fired for Legal Use?

If you have a prescription for marijuana and you smoke while on your lunch break and return to work under the influence, can you get fired? What if you smoke for any reason during your off hours in a state where the drug is legal and come to work completely sober but fail a drug test?

As with all things related to the confusion surrounding regulation of legal marijuana use in the states where it is legal for medicinal and/or recreational purposes, there is no blanket answer that will apply in every situation in every state.

Legalization & Marijuana Use for medicinal purpose in the Workplace

The Current State of Affairs

As of this month, the District of Columbia and 25 states have legalized the use of marijuana for the purposes of treating certain medical conditions. Many of the people who have prescriptions for marijuana are gainfully employed, anywhere from 1 million to 1.5 million people. This puts employers that may have had a zero-tolerance policy when it comes to drug use and the workplace into a touchy predicament: Should those who are legally using marijuana be fired for the offense?

In most states where marijuana is legal, the laws uphold employers’ rights to fire employees who fail drug tests and/or use marijuana during off hours. But in seven states, there are many restrictions on employers in an attempt to protect both employee and employer, and four states are in the process of reviewing legislative changes that would provide more support for employees who use the drug.

The following states do not currently require employers to continue to employ employees who use marijuana for medicinal purposes off the clock or during work hours:

  • Alaska
  • California
  • Colorado
  • Maine
  • Massachusetts
  • Michigan
  • Montana
  • New Jersey
  • New Hampshire
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Washington

In the following states and districts, there are no laws that define the parameters of employers’ responsibility to accommodate the use of marijuana by employees:

  • District of Columbia
  • Hawaii
  • Louisiana
  • Maryland
  • New Mexico
  • Vermont

It may be helpful to look to the regulations surrounding alcohol when it comes to determining how best to manage the issue of marijuana use in the workplace. No employers test for alcohol use among employees, yet it is understood that if someone is routinely unable to manage their responsibilities while on the clock due to heavy drinking the night before or over the weekend or is ever under the influence at work, it can be grounds for termination.

This comparison, of course, only works when the person is using marijuana recreationally. Alcohol is not legal for medicinal use, thus in the cases in which the person is using a prescription for the drug, we can look to the standards regarding use of prescription painkillers, sedatives, and other legal yet addictive medicinal substances.

In the case that an employee is prescribed a drug that negatively impacts the ability to function at work, in most cases, the person would simply take time off if it were an acute issue. For longer-term issues, if the use of these substances was at a low enough dose that it did not impact their ability to manage responsibilities, then it is unlikely that the boss would even know about that use, much less consider it to be a firing offense. However, when the dose is higher and the person is clearly under the influence and not focused on the job, loss of employment is usually imminent. Though it is unlikely to be related to a failed drug test due to the prescription, it would be related to a documented inability to function on the job – a fireable offense in almost any situation.

The Reality of the Situation

Though many employers may be losing the right to fire an employee based on marijuana use, many are attempting to circumvent the issue by requiring applicants to take a drug test in order to qualify for employment and sign an agreement that they understand that any and all drug use that hurts their ability to do the job will be cause for termination.

Unfortunately, though employers might feel that the zero-tolerance policy is their best bet for ensuring the safety of their employees and customers – especially in physical jobs such as driving, construction, and other jobs that require the use of machinery – it is becoming harder and harder for many employees to find applicants who can do the job and are also clean and sober. The New York Times reports that it is becoming more and more difficult for many employers to find employees who can pass a drug test that is part of the hiring process. Faced with choosing between potentially unsafe employees and a lack of employees, many companies are having to make some tough choices when it comes to resource management. It is an issue that can potentially put an entire economy of a small town at risk or endanger the safety of others.

What Do You Think?

There are a number of solid opinions that support both the rights of employees to use a drug that is currently legal for medicinal use in the state and the rights of the employers – and other coworkers – who want to prioritize safety and efficient work ability. It is also important to consider that, at least for now, marijuana is still illegal under federal law. What do you think? What should take priority in this situation?

What’s the Current Landscape of Marijuana Legalization in New Jersey?

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