With several states legalizing both medicinal and recreational marijuana in recent years, many employees now wonder if they are protected from being fired for smoking pot at work. Medical marijuana is legal in more than 30 states and the District of Columbia. States, where recreational marijuana is legal, include Washington, Oregon, Nevada, Maine, California, Alaska, Colorado, and Massachusetts.
But just because weed is now legal in various states, it doesn’t mean that you can go to work stoned. Many employers have zero-tolerance drug policies. Weed is different from alcohol. It can be detected 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.
Research has shown that more than 188 million Americans (58%) have indicated a willingness to medicate with marijuana, get high, or at the very least allow others to do so. Over a quarter of Americans indicate wanting to smoke pot strictly for pleasure. Those residing in states where marijuana is now legal have to deal with this new reality. But it’s employers and employees who need to think about this on a more fundamental level. Employees who use pot may have to deal with their employers’ regulations and suspicions, and the possibility of losing their jobs.
There’s a new tug of war in the workplace, and the rules and regulations aren’t that clear.
What Issues Will I Face While High at Work?
We completely understand that getting high before work may sound appealing, and many people have even claimed that they work better when stoned. But best of luck getting that one past your boss! Researchers are currently looking into seeing if cannabis can help with ADHD patient focus, but as of yet, nothing conclusive has been published.
Unless you work for a very progressive Cannafornian, your boss most probably 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 stoned at work. You see, although bosses don’t want employees to be stressed, they also don’t want them to be incompetent. The real issue at hand is company liability.
For instance, if you are a mechanic we are pretty sure that your boss will have an issue with you showing up stoned because they don’t want to take on the risk in the event that you cause more damage to a car that you’re working on or even hurt yourself or someone else because you were under the influence.
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 that you reside in specifically prohibits employers from firing employees for off duty cannabis use, you probably won’t be protected.
Several states that have medical marijuana laws – including Arizona, Delaware, and Illinois – have passed laws that restrict employers from firing those who use medical marijuana unless they’re shown to be impaired on the job. If you are in possession of medical marijuana prescription in these states, your employer can’t fire you for off-duty use that doesn’t affect your work.
However, there are several other states with medical marijuana laws that either specifically allow employers to fire employees for off-duty use, or they simply don’t address the issue. In states that don’t have a clear directive, courts have been ruling 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. But 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 address the issue, the law will remain in a state of uncertainty. So you will 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, marijuana is still considered to be a Class 1 drug by the federal government. So before you fail a drug test, you should learn what your company’s policies are regarding weed use by enquiring with HR about drug tests.
Employers have the right to set rules for non-medical use of weed in the workplace in much the same way that they currently set rules for the use of alcohol. Specifically, employers may prohibit the use of weed at work or during working hours and can also prohibit employees from attending work while impaired.
Rules regarding the non-medical use of marijuana in the workplace may be enforced via the application of the employer’s progressive discipline policy.
But ultimately, companies have a duty to accommodate medical marijuana usage. If an employee has a marijuana prescription, employers have a duty to accommodate them. In reality, it should be no different than any other accommodation – whether it’s accommodating 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.
Pot-friendly Companies Already Exist
Colorado has become somewhat of a model for weed legalization, adding 18,005 full-time jobs and $2.4 billion to the state’s economy in 2016. 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) all 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 so far only anecdotal evidence exists, it does suggest that it’s working for them. To date, the company has processed nearly $200 million in marijuana purchases and an additional $3.25 million in investor funding.
These companies may be open-minded outliers for now, but a 2015 survey reported that a fifth of small business owners said that they would allow employees who have medical marijuana prescriptions to use pot at work, demonstrating that mentalities might be changing.
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.
It’s likely that zero tolerance workplace policies for cannabis use or possession will become unenforceable. We also expect to see employees begin to negotiate or request coverage under health and benefits plans for medical marijuana prescriptions. But ultimately, in time, many uncertainties and issues surrounding the use of marijuana will be litigated.