Everything You Need to Know About Weed in the Workplace [2018 Update]
June 14, 2018

Everything You Need to Know About Weed in the Workplace [2018 Update]

Understanding what's allowed and what's not...
Nicole Richter Nicole Richter / Updated on June 14, 2018

Everything You Need to Know About Weed in the Workplace [2018 Update]

We have entered a brave new world as marijuana is, at the time of writing, legal for recreational use in eight states including D.C, and in 21 other states for medicinal use. Back in 2012, Washington and Colorado became the first two states to legalize weed for recreational use for residents aged 21+. California recently joined the party in January 2018 and there are ballot initiatives for recreational cannabis use in several states.

However, it is crucial to remember that these laws do NOT extend into the workplace. If you live and work in states such as California or Colorado, rules and regulations are preventing you from consuming marijuana at work. It is important to note that, in every state where pot is legalized for recreational use, there are still strict regulations regarding where it can be purchased, where it can be used, and the amount you’re allowed possess.

Above all, no state forces employers to tolerate weed use at work, so you better keep your joints at home! Of course, nothing is ever that simple when it comes to marijuana, so keep reading to learn all about the most recent happenings.

When Medical Marijuana Use Gets You Fired

Recreational marijuana is treated like recreational alcohol in most workplaces. Like it or not, cannabis can impair a person’s mental and physical capabilities. You can be arrested for DUI if you use cannabis while driving just as easily as for alcohol inebriation. Therefore, it is only right that you can’t use weed at work. However, some states take things too far.

Despite the state’s ‘liberal’ reputation, Californian law ensures that employers are allowed to fire an employee for using weed on or off the job. Companies in the Golden State are also permitted to refuse to hire an applicant who has produced a positive drug sample in pre-employment screening.

In 2008, Ross v. RagingWire Telecommunications was a famous case that went all the way to the state’s Supreme Court. Gary Ross, the plaintiff, alleged that RagingWire, his former employer, had discriminated against him for having a disability. They fired him after he tested positive for weed. According to Ross, he was using medical marijuana for his back injury.

The California Supreme Court ruled that employers in the state are under no obligation to accommodate the medical marijuana use of employees and were permitted to fire them for weed use. Fast forward a decade and, while marijuana is now legal for recreational use in California, it is still federally illegal.

What About Employees Who Use Medical Marijuana for Disabilities?

Despite California’s stance, it is becoming more difficult for employers to follow through on ‘zero tolerance’ policies due to new state laws which legalize weed. The American Disabilities Act (ADA) prevents employers from discriminating against ‘qualified individuals’ due to a disability. In this case, companies have to offer ‘reasonable accommodations’ to staff with disabilities to ensure they can perform their role’s essential functions.

A ‘qualifying individual’ may have a medical condition such as Crohn’s Disease, permanent nerve-related disorders, or seizure disorders. The use of medical marijuana should have a ‘significantly positive’ impact on a person’s ability to perform important life activities. Also, medical weed must be deemed essential to a person’s ability to perform his/her job in the workplace. Ross was unable to prove this and so he lost his job.

In California, even companies with a ‘don’t ask, don’t tell’ policy are legally allowed to fire anyone who tests positive for marijuana in a drug test. The problem here is that these tests don’t show when the cannabis was used, so there is no way of knowing if the employee was under the influence of pot in the workplace. It seems unfair to fire someone for using marijuana at home in a state where it is legal for recreational use. Imagine the outcry if an employee was fired for testing positive for alcohol due to the two glasses of wine they had the previous evening at home!

In 2015, the Colorado Supreme Court ruled that companies can still fire staff who use medical marijuana. It held that weed use is unlawful under federal law, so even medical marijuana can’t be classified as ‘lawful’ under Colorado state’s off-duty conduct law. In 2012, Brandon Coats, a medical marijuana patient who is also paralyzed, was fired for failing a drug test a couple of years previously. He took the matter to the state’s Court of Appeals and it was his case that led to the Supreme Court ruling in 2015.

Some States Offer Protection

However, a number of states have enacted laws which offer an element of protection to employees who need medical marijuana to carry out the duties of their roles effectively. In New York for instance, the 2014 Compassionate Care Act (CCA) provides that employees who are certified marijuana users are safe from ‘disciplinary action by a business’ for exercising their right to use medicinal weed.

In the state of Massachusetts, the Supreme Judicial Court ruled that employees qualified to use weed medicinally, who have been fired for a positive marijuana drug test, are permitted to ‘seek a legal remedy’. This ruling came as part of the Barbuto v. Advantage Sales & Marketing, LLC case in September 2015. Plaintiffs can make a claim of handicap discrimination which is in violation of Massachusetts laws.

In this case, the Massachusetts Supreme Judicial Court stated that Advantage Sales & Marketing should have tried to engage in the interactive process to determine if Barbuto’s use of weed in the workplace could have been accommodated. Barbuto had Crohn’s disease and had informed her employer about the necessity of marijuana use to treat her condition. When she tested positive for cannabis, she was fired under the firm’s ‘zero-tolerance’ drug policy.

Advantage claimed that, because marijuana is federally illegal, it was under no obligation to accommodate its employee. The court explained that Advantage was in no danger of violating any law by allowing Barbuto to use medical marijuana. Moreover, the court ruled that it was unfair for the plaintiff to be forced to choose between her job and her health.

Meanwhile in Rhode Island, the 2017 Callaghan v. Darlington Fabrics case was also a victory for medical marijuana users. The state’s Supreme Court ruled that an employer’s enforcement of its drug testing policy to dismiss an applicant because she used medicinal cannabis violated Rhode Island’s anti-discrimination provisions with regards to its medical marijuana law.

The plaintiff, Christine Callaghan, was referred to Darlington as she searched for an internship. She openly admitted that she carried a medical marijuana card when told about the upcoming drug test and stated that she would fail the test as a result. Darlington’s HR coordinator, Karen McGrath, informed Callaghan that she would be ‘unable to hire her’.

Things are definitely looking up for residents of Maine who enjoy marijuana during leisure time. In February 2018, it became the first state to protect employees who use the herb outside of work hours. The Maine Department of Labor has ruled that cannabis should be removed from the list of substances tested by employers. The new law also states that companies can’t refuse to hire someone, nor penalize them, for consuming marijuana outside the organization’s property.

In what is an encouraging move, the Department offers protection for companies too. Employers are permitted to ban marijuana use in the workplace and they are free to discipline anyone who breaks the rules. However, a positive drug test is no longer enough to prove that a staff member was under the influence of cannabis while at work. This is great news because urine tests often show marijuana days after it was used. Theoretically, you could use weed at the weekend and, if you have to take a drug test on Monday, it may show up and cost you your job.

Final Thoughts on Marijuana in the Workplace

The ever-changing marijuana laws are proving a challenge for the HR departments of companies where the herb is legalized. It seems incredible that a person who is approved to use cannabis to combat a medical problem can be fired in multiple states. How are these individuals supposed to do their job to the best of their ability if their performance is hampered by a medical problem they are not allowed to treat?

As employers such as Darlington Fabrics in Rhode Island and Advantage Marketing & Sales in Massachusetts have found out to their cost, some states require employers to engage in an interactive process to see if the marijuana user can be accommodated. Unfortunately, this is not enough, and since many companies still ignore this process, we expect several more Supreme Court cases in different states in the near future.

It is also ludicrous that, in states such as California and Colorado, where weed is legal for recreational use, employees can have their contracts terminated for using marijuana recreationally away from the workplace. No one is reasonably suggesting that we should be allowed to get stoned at work any more than it should be okay to be drunk from alcohol use while working. Therefore, you can’t complain that you’re forbidden from eating an edible at lunchtime when company policy prevents staff from drinking a glass of beer.

All we are saying is that, in states where marijuana is legal for recreational use, employees should be allowed to use it outside of work. In states where weed is legal for medical use, qualifying individuals must be permitted to use the herb to treat their medical problems. Maine has displayed admirable common sense by removing cannabis from employment drug testing, and we hope other states follow suit.

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