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What Employers Should Know About the Regulation of Marijuana

by
Ron Chapman, Jr.
Jan 7, 2013, 4:01 am ET

co-authored by Roger G. Trim, a shareholder in the Denver office of Ogletree Deakins

Screen Shot 2013-01-05 at 1.01.38 PMAs of January 2013, 18 states and the District of Columbia have laws on the books legalizing the use of medical marijuana. A number of additional states have gone even further by passing laws decriminalizing or eliminating jail time for possession of small amounts of marijuana, regardless of whether the marijuana was for medical use. Finally, two states — Colorado and Washington — passed laws on November 6, 2012, affirmatively legalizing the recreational use of marijuana. Many employers are concerned about what these marijuana laws mean for them and whether they need to make any changes to their drug policies in light of recent developments.

Regardless of state law, marijuana possession and use remain illegal under the federal Controlled Substances Act. In an official statement after the November election, the U.S. Attorney’s Office stated that the U.S. Department of Justice’s enforcement of marijuana laws remains unchanged. Therefore, even with the passage of the new laws in Colorado and Washington, both recreational and medical marijuana use remains illegal under federal law.

Furthermore, the explicit language of Colorado and Washington’s new laws should minimize their impact in the workplace. Neither law affords affirmative employee work rights with respect to marijuana. To the contrary, Colorado’s law specifically states: “Nothing in this section is intended to require an employer to permit or accommodate the use … of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Additionally, at least two Colorado court decisions have held the use of medical marijuana does not constitute lawful off-duty conduct. This is important because under Colorado law, it is unlawful for an employer to terminate an employee for engaging inlawful activity off the premises of the employer during nonworking hours.

In Beinor v. Industrial Claim Appeals Office, the Colorado Court of Appeals affirmed the Industrial Claim Appeals Office’s denial of unemployment benefits to the claimant and concluded that, although the Colorado Constitution precluded a claimant from being criminally prosecuted for using marijuana for medical purposes, “it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer’s express zero-tolerance drug policy.” Similarly, in June 2011, a Colorado court found using medical marijuana does not qualify as “lawful” off-duty conduct because medical marijuana was not per se legal in Colorado.

Washington’s new law does not directly address employers’ drug policies. However, a Washington Supreme Court case addressing the issue of medical marijuana determined the state’s medical marijuana law did not prevent an employer from firing an employee for medical marijuana use.

A number of other states also have determined their medical marijuana laws do not prohibit employers from terminating employees for violation of drug policies. For example, in Ross v. Ragingwire Telecommunications, Inc., the Supreme Court of California determined an employee was not wrongfully terminated when he failed a drug test and his employer had no duty to accommodate his medical marijuana use.

Although there are not yet any cases dealing with employers’ right to terminate employees for violation of drug policies after the passage of Colorado and Washington’s recreational marijuana laws, the medical marijuana use cases in those states are indicative of what the result would be if an employee attempted to argue wrongful termination for recreational marijuana use. The argument for continued prohibition of recreational marijuana use under drug policies is even stronger than the argument for continued prohibition of medical marijuana. If an employer can refuse to hire or terminate the employment of someone who uses marijuana for medical purposes, then that employer should be able to refuse to hire or terminate someone who uses marijuana recreationally.

Therefore, drug testing of applicants and employees for marijuana is still generally permissible, and employers still can take action against applicants and employees found to be in violation of carefully crafted drug policies. Employers should review their drug testing policies, or have them reviewed, to ensure compliance with the latest nuances in this emerging area of the law, particularly with respect to variations in state law.

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

  1. Martin Snyder

    “At least two Colorado court decisions have held the use of medical marijuana does not constitute lawful off-duty conduct. This is important because under Colorado law, it is unlawful for an employer to terminate an employee for engaging in lawful activity off the premises of the employer during nonworking hours”

    Will be interesting to see how those cases hold up- e.g. does the public purpose of that doctrine square with at-will status now that pot is explicitly lawful?

    If we fired everyone who ever used the weed at our firm, the halls would be virtually empty.

    When one thinks of the meaning of liberty, somehow I don’t think the founders had employers rooting around in one’s bloodstream in mind….. “employer zero tolerance” as a concept would have likely made them puke…

  2. Keith Halperin

    Hmmm. I wonder if a firm in Utah could require drug-tests for caffeine, nicotine, or alcohol and dismiss someone who tested positive for them?

    @ Martin: Some of the Founding Fathers were slaveholders…and in more recent decades (since the ’80s) more conservative court rulings basically state: “You take the Man’s dollar, you wear his collar.” It’s not as if we had a strong labor movement or a Social Democratic/Labor party to fight against this kind of stuff (among other things) like the vile and evil Canadians, Europeans, Australians, and New Zealanders do. They do, and look how their employers quake in fear under those stalinesque conditions!

    Cheers,
    Keith

  3. Richard Araujo

    Discussion about marijuana almost always skirt the only relevant issue with regard to recruiting and HR: does it affect employee performance? And if not, who honestly gives a damn? There’s a tendency when these topics come up to turn the conversation to high minded concepts of freedom and liberty, and citing court cases and the founding fathers. Whatever anyone’s thoughts on those issues is, isn’t the relevant question in this context whether or not it matters, and whether or not the money spent over the years in employment drug screening, and the subsequent potential hires that are always lost however small a number they may be, was worth it from performance and cost/benefit based points of view?

    Knowing the levels that show up in the tests, and that the detection times are all VERY public knowledge not just for marijuana but for all drugs, in all honesty you need to be a dimwit to get caught by a drug test. So the answer to the above question may in fact be, “Yes.” But for some reason I doubt it. Plus, I would dearly love to see some studies done on just how an intrusive recruiting process and subsequent employer/employee relationship affects employee performance and morale in the short and long term. For me personally I know I’ve already been in situations where people as for my Facebook password, and my response is to tell them to go to hell.

    Fundamentally this comes down a problem we always have to deal with as recruiters: HMs focusing on extraneous and often irrelevant details in an almost desperate effort to decline a candidate and put off making a decision for which they will be held accountable. You say No to a candidate and everyone assumes facts not in evidence, and that you dodged a bullet when in fact you may have just passed up on a superstar candidate. The reasons for the No are rarely examined.

    To offset that I find using something like the scorecard Lou Adler has to be a great resource. You don’t have to use that one, I don’t, but the basic concept is to get HMs to justify a No as much as a Yes. I strongly suspect marijuana use, barring positions where safety is a concern, wouldn’t matter one way or another in such an assessment. And in such instances where safety does matter my guess would also be that spot checks for sobriety would be much more effective, AND acceptable to the employees being checked.

    Of course in terms of legal ramifications we probably have much of what’s considered acceptable practice in these matters forced on us. And you have to wonder what happens to an economy where performance takes a back seat to politically correct lifestyle choices, whether because of government fiat or social prejudice.

  4. Todd Raphael

    Richard – I’m surprised you’ve found yourself in situations where you’ve been asked for a Facebook password. I’ve obviously read about it and discussed it on videos and all that — but my understanding was that outside of some highly unusual jobs (like a spy), situations where it had actually happened were very, very rare.

  5. Richard Araujo

    @Todd: Or from small time employers who don’t know any better and think it’s ‘cutting edge’ or something like that. At least, that describes my experience. You have to wonder what people who do ask for this info think they’re going to find.

    “He likes pictures of cats, we obvious can’t hire him. What if Ceiling Cat infiltrated our installation…”

    Even if you DO find something compromising about someone, as Martin stated, who on this planet doesn’t have something in their past they wish they could make unhappen? And going forward it’s way more likely than in the past that these events will be documented. In an odd way I can see supporting more intrusive employment practices if only to demonstrate to the suits who push for them how useless they are via experience ans lost money.

  6. Keith Halperin

    @Richard: Since when does fact-based practicality determine recruiting policies? By and large it’s the GAFI Principles (Greed, Arrogance, Fear, and Ignorance/Incompetence) of the people in charge who determine what goes on….

    Cheers,

    Keith

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