Are employers caught in the middle of marijuana use by an employee while on the job?
A worker in Colorado who undergoes a random drug test is found to test positive for marijuana use, but in less than a month pot-smoking will be legal there. Can a company with a zero-tolerance policy for illegal drug use still fire that worker, or should it instead adjust its policy on employee drug use?
An article by Daniel B. Wood in the Christian Science Monitor provides up-to-date developments. Click Here For The Full Article in the Christian Science Monitor
When does federal law, which still outlaws marijuana possession and use, trump state law?
That last point is beginning to be resolved in the courts, and so far it’s coming down on the side of the preeminence of federal law. As Colorado Gov. John Hickenlooper famously quipped last November, even as the vote tallies showed the measure to legalize recreational marijuana would be approved: “Federal law still says marijuana is an illegal drug.”
Two big court cases have already started paving the way, although some experts disagree about their exact implications. Both concern employee use of medical marijuana, which is already legal in Colorado and Washington (as well as 18 other states).
In April, the Colorado Court of Appeals upheld the firing of a man who is a quadriplegic for his off-the-job use of medical marijuana use. In the case, Coats v. Dish Network, the state appeals court concluded that because marijuana is illegal under federal law, employees have no protection to use it at any time. (The state Supreme Court has not yet said if it will hear the appeal.)
Then, in August came a ruling from a federal district court in the case of Curry v. MillerCoors Inc. An employee who had tested positive for marijuana was fired under MillerCoors’ written drug-policy, though he said he had never used marijuana on company premises and had never been under the influence of marijuana at work. “Despite concern for Mr. Curry’s medical condition, anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct,” wrote Judge John Kane.
“There is a huge tension between states and the federal government on this issue, and employers are caught in the middle,” says Mark Spognardi, a Chicago-based attorney who specializes in drug and alcohol testing.
Most employers fall into one of three camps as they consider the new marijuana laws and their own personnel policies, says Kimberly Ryan, a Colorado-based civil rights and employment law specialist.
- Business as usual. Nothing will really change because these companies didn’t have a policy for drug testing before voters approved the marijuana measure.
- Adaptable. Some companies are considering policy changes after weighing their hiring reputations against their legal obligations.
- Zero tolerance. These employers feel that no worker usage whatsoever is the safest policy, and they rest their case on the rulings in the Coats and Curry lawsuits.
Some employers are looking for guidance from a new Colorado law, which took effect May 28, that defines what constitutes a pot-impaired motorist. But as far the workplace is concerned, analysts say, employers will be establishing their own rules concerning off-hours marijuana use. Their attitude is ‘These are our rules, and if you violate them, you’re fired,’ ”.
One problem with establishing legal limits for marijuana is that pot behaves differently in the human body than alcohol, say advocates of legal marijuana. “We have this notion that since we have a magic number for alcohol, that we are going to have a similar number for marijuana,” says Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Law, which advocates legalization. “The problem is that marijuana is not metabolized and absorbed by the body in the same way alcohol is.” Some amounts are retained much longer, and the effect can be hard to gauge, he says.
“If you’re not allowed to drink on the job, you’re not allowed to smoke [pot] on the job,” says Daria Serna, a spokeswoman for the Colorado Department of Revenue’s Medical Marijuana Enforcement Division.
“The state passed legalization very easily, but as much as we might disagree, the courts are still telling us we are bound to the federal law,” says Sam Kamin, director of constitutional rights and remedies program and professor of law at the University of Denver’s Sturm Law School.
