S3 Ep52: Marijuana Laws and the American Workplace

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In this episode of the Employee Survival Guide®, Mark discusses Marijuana Laws and the American Workplace.  Mark explores the proliferation of states legalizing marijuana (aka "weed") and the interplay of medical and recreational weed use among employees.  He explores whether or not employers can ban weed use on and off the clock.  Mark discusses workplace safety and how that changes the dynamic of medical and recreational use of weed by employees.  He discusses drug testing and how the tests are not scientifically correlated to exactly when the employee used the weed, i.e. on or off the clock.  Mark then explores how the courts have handled employment cases involving marijuana use. Finally, Mark encourages both employers and employees to know the law before they make decisions to fire employees and before employees use marijuana off the clock so they do not jeopardize their employment.

Listen in and send Mark any comments you have. Free speech is welcomed here. [e-mail]. Thank you.

This episode was written by Chris Avcollie, edited by Matt Zako, and produced by Mark Carey.

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Episode Transcript

Unknown (00:00):
Hey it's Mark here and welcome to the next edition of

(00:03):
the Employee Survival Guidewhere I tell you as always what
your employer does not want youto know about and a lot more.
Today's episode we're gonna talkabout marijuana laws and the
American workplace. A pretty hottopic. No pun intended. It's
sort of legal, but not totallylegal at work, dude. The legal
landscape for marijuana use haschanged, like the delightfully

(00:26):
shifting colors and the lavalamp in your college dorm room.
The current status of weed inthe American workplace is in an
ever changing state of flow. Inrecent years, marijuana use has
become increasingly legal in theUnited States. 39 states have
legalized cannabis for medicaluse in 18 states plus the
District of Columbia havelegalized adult recreational use

(00:48):
as well. Notwithstanding thistidal wave of state legislation,
the federal government hasmaintained its blanket
prohibition against cannabis.
Under the Controlled SubstancesAct, marijuana remains a
schedule one drug along withheroin and cocaine. Go figure.
But what does this dual stateand federal status mean for the
traditional prohibition againstmarijuana use at work? Can

(01:10):
someone be fired for using potat work in states where it's
legal for all adults? Can peoplebe fired for using medical
marijuana on duty? What aboutthe pre employment drug tests?
Can they be used to screen outcannabis users in fully legal
states? Can you be fired for offduty use of marijuana? The
answers are elusive and dependon a confluence of state and

(01:32):
federal law as well as employerpolicies. Although there are
cannabis reform bills making therounds on Capitol Hill,
including the marijuanaopportunity, reinvestment and
expungement act, it's calledmore Mr. E, which would
federally legalize cannabis.
Employers in individual stateshave struggled to deal with the

(01:54):
evolving workplace issues thathave recently developed. Can
employers ban weed or not. Somestates and local jurisdictions
have made laws prohibitingdiscrimination based on medical
and in some cases evenrecreational marijuana use.
These laws prevent employersfrom taking adverse actions
against employees who lawfullyuse cannabis, provided that they

(02:16):
do not do so on the job. Butthat too is complicated. Because
marijuana can take up to 30 daysto fully metabolize in the human
body. Unlike alcohol or cocaine,it is often difficult to
determine whether an employeewho tests positive for pot used
it at work or outside of work.
This makes it hard to determinewhether the employee was
actually impaired on the job.

(02:38):
Employers must be careful inenforcing their drug policies
against lawful cannabis users.
It is clear that employers canprohibit marijuana use during
working hours in most of allcases. Employers have a definite
right and financial interest inensuring that employees are not
coming to work intoxicated bymarijuana, alcohol or any other
drugs. The issue is how can anemployer prove marijuana

(03:01):
intoxication? And how can aprohibition on marijuana off
duty be enforced in weed legaljurisdictions? The issue for
employers is often workplacesafety. Because it's very
difficult for employers todetermine if a positive drug
test for cannabis is the resultof drug use during work or on
off work hours. Some employersfind it logistically simpler to

(03:22):
just have a complete ban onmarijuana on or off duty.
because marijuana is stillillegal under federal law. Zero
Tolerance weed policies maystill be enforced in many
jurisdictions. State and locallaws protecting legal cannabis
have been increasinglycomplicating the situation. Most
states with medical marijuanalaws provide more protections in

(03:44):
the workplace for medicalmarijuana users rather than
recreational users. Even whereMarijuana Medical Marijuana is
protected. However, employerscan require a drug testing
before implement, and at randomrandom times so long as there is
no discrimination againstmedical marijuana users. Some
employers are continuing tocontinuing tight restrictions

(04:06):
and zero tolerance policies evenfor out of work we'd use. Others
are changing their policies anddisciplining employees for
cannabis use only if an accidentresults or performance is
affected. A few employers areeven permitting open consumption
of marijuana during work.
As more states begin to legalizeemployee attitudes are changing.

(04:30):
employee morale can be affectedby these changing attitudes.
Many workers believe thatillegal use of cannabis outside
of work should not be groundsfor termination if they fail a
drug test. Employers need toconsider the changing attitudes
in the workplace when decidinghow to handle the New Cannabis
landscape. Workplace Safetychanges the dynamic although

(04:51):
many jurisdictions are passinglaws protecting medical and even
recreational use of cannabis inthe workplace. But then the
mentions of the protections arevery different. When applied to
jobs that involve public safetyand transportation, and then in
these contexts, the laws areerring on the side of employers
and public safety. Those whoemploy police officers,
firefighters and mass transitprofessionals, for example, are

(05:14):
permitted to maintain andenforce a zero tolerance
policies against marijuana useon and off duty. It makes sense
and we think we all agree withthis. The potential risks often
associated with cannabis use onthe job have caused changes in
workers compensation laws and afew states. For example, in
Wisconsin, a worker injuredwhile under the influence of any
substance, including cannabiswill suffer a reduction in

(05:36):
compensation benefits in thestate of Michigan, workers on
the influence of any substance,including marijuana at the time
of the injury are not entitledto workers compensation benefits
at all. Drug Testing must beillegal. Yet another wrinkle in
the patchwork tapestry ofworkplace marijuana laws is the
issue of improper or illegaldrug testing, even in

(05:57):
jurisdictions where employeescan be terminated for a positive
marijuana drug test. If thescreening itself is unlawful,
then the employee cannot befired. While federal law does
not place limits on drugtesting. Many states and local
jurisdictions regulate how andwhen employers can conduct drug
tests. In general, employers maytest new applicants more freely

(06:18):
than permanent employees.
Employers may usually drug testapplicants after making a
conditional offer of employment.
In some jurisdictions, whoeveran employer cannot conduct
routine or random drug tests oftheir current employees. Often
the employer is required to testonly under certain conditions,
such as when an employee isinvolved in a workplace accident

(06:38):
or when an employee is returningto work after a drug
rehabilitation program. Somestate drug testing laws require
that the employee have notice ofa drug test and that the test be
administered by the leastinvasive means possible. The
courts way in an interestingplace to view these workplace
marijuana policies is from ajudicial perspective. How are

(07:00):
our courts interpreting thispatchwork of laws and
regulations around the workplaceuse of cannabis. During the
early years of legalization,courts tended to favor employers
enforcing anti drug policiesover newly legalized cannabis
users. In California employershave been permitted to terminate
workers who test positive forweed provided that the employer

(07:20):
complies with its own drug freeworkplace policies. In Colorado,
the case of coats versus DishNetwork. The Colorado Supreme
Court decided a case brought byan employee who was quadriplegic
and needed medical marijuana tocontrol leg spasms. The employee
use medical cannabis with avalid prescription during off

(07:41):
duty hours. The employee wasfired after testing positive and
a random drug screening testgiven by the employer. According
to the Colorado Supreme Court,the state's medical marijuana
law which protected lawful offduty use of marijuana did not
preempt the company's zerotolerance policy. Because the
court said that the lawfulactivity is defined by federal

(08:03):
as well as state law. The statestatute did not protect the off
duty use of cannabis. That was2015 by the way. In recent
years, however, the courts haveincreasingly sided with
employees whose medical and evenoff duty recreational use of
cannabis is protected by newstate and local laws.
In Arizona in the case ofWhitmore versus Walmart, Inc, a

(08:25):
federal district court judgeruled against Walmart Inc, for
terminating an employee testedpositive on a workplace drug
test, following an injury shesustained on the job. The woman
had been prescribed medicalmarijuana and the court held
that she was protected under thestate's Arizona Medical
Marijuana Act, a em Ma. The keyfact in that case was that the
employer could not establishwith scientific evidence that

(08:47):
the employee had used marijuanaat work or just outside of work.
This is a real life example ofthe testing difficulties
described previously. In thiscase, the employer was able to
maintain her own action forwrongful termination. In
Connecticut in the case of naps,sikkert versus SSE, Niantic
operating Co. The federaldistrict court and Connecticut

(09:08):
judge Meyer held that anemployer violated Connecticut's
palette of Use of Marijuana Act,Puma pu Ma, when it rescinded a
conditional offer of employmentfollowing a positive initial
drug test for cannabis. Theprospective employee was
qualified as a medical userunder Puma due to treatment for
PT PTSD. The court held that theemployer had violated Puma by

(09:30):
withdrawing the offer ofemployment, the employer was
able to bring a private right ofaction in the case of chance
versus Kraft Heinz food. ADelaware Court recently faced
facts similar to those at issuein the cases just previously
discussed. The court held thatthe Delaware's medical marijuana
law prohibiting discriminationagainst lawful use of cannabis.

(09:50):
The Delaware Medical MarijuanaAct Diem ma allows an employee
to sue his employer for wrongfultermination after his employment
was terminated. Dude to apositive post accident drug test
result for marijuana. Theemployer argued that the federal
law preempted the state antidiscrimination law because
marijuana is illegal under theControlled Substances Act as a
class one drug. The Delawarecourt held that the preemption

(10:14):
does not apply because the antidiscrimination provisions of the
DMM a do not pose an obstacle tothe objectives of Congress, nor
did they render compliance withboth federal and state law
impossible. The dem ma does notrequire employers to participate
in an illegal activity, butinstead merely prohibits
employers from discriminatingbased on medical marijuana. The

(10:38):
court also found a private rightof action to enforce D MMA.
Protect yourself. Now the law.
While these cases are emblematicof a new trend towards
protecting legal cannabis use inthe workplace, much remains
uncertain. In this evolvinglegal space. Employers should be
cautious and armed themselveswith detailed knowledge of the
laws in their states and localjurisdictions before deciding

(10:59):
whether to hit private or toallow medical or recreational
use of marijuana by theiremployees. Liability for illegal
discrimination could result ifmedical marijuana laws are
violated. Employees must becautious and be sure they
understand the local and statelaws as well as their employers
policies before using marijuanaand potentially putting their

(11:20):
job at risk. Some employersmaintain policies that are no
longer legal, so employeesshould be aware if they are in a
workplace that does notfollowing along. I hope you find
this topic helpful to you. Andif you need more information,
please contact our office. Havea great week. Be sure to rate us
review us on this podcast. We'realways trying to help you and

(11:42):
talk to you soon. Thank you