Dazed And Confused: State-Legal Marijuana And The Drug-Free Workplace

Where cannabis is legal, employers can no longer drug test employees for THC, right? Wrong. For now.

Where cannabis is legal, employers can no longer drug test employees for THC, right? Wrong. For now.

In all 23 states and the District of Columbia where medical marijuana is legal (including the four states and D.C. where recreational marijuana is also legal), employers may drug test their employees and insist on a drug-free workplace. Few of the marijuana-friendly states require that employers accommodate employees who use cannabis, even if for medical use.

In other words, a zero-tolerance drug policy even for state-legal marijuana remains very much alive. But as state marijuana laws continue to evolve, firing employees for marijuana use is becoming increasingly complicated, especially for employers without clear workplace drug policies and especially when marijuana use takes place outside working hours and has no impact on job performance.

Employees in certain cannabis states have tried to fight back against zero-tolerance drug policies in the context of medical marijuana. In 2011, prior to all-out legalization in Washington State, in the case of Roe v. Teletech, the state Supreme Court ruled that Washington’s Medical Use of Marijuana Act does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug-test policy, regardless of whether the marijuana use took place outside of working hours. Oregon and California state courts also recently upheld an employer’s right to deny employment to cannabis users and to discipline or terminate employees for marijuana use, even if the employee is using medical marijuana legally under state law. And in the majority of the other marijuana states, not only may employers test for marijuana impairment on the job, they also may test for marijuana use that could have occurred weeks before the test date, regardless of any potential adverse impact on job performance.

The current bottom line for employees is that even residual amounts of marijuana in your system can be grounds for job termination if your employer takes a hardline stance with its drug policy. If you consume marijuana in your home in accordance with state law, you can still be fired if your employer maintains a drug-free workplace. Even if your employer does not have a stated policy on employee drug-use, if you are an at-will employee, your employer can fire you for any reason unless there is some type of legal prohibition on the reason for termination, such as gender or disability discrimination.

In a handful of states, employers are prohibited from terminating employees if termination is due solely to an employee engaging in lawful activity that takes place off the employer’s premises during non-working hours. A case is playing out right now in Colorado that will test whether these Lawful Activities Statutes can protect employees from being fired for using marijuana away from the workplace. Coats v. Dish Network, which has made its way to the Colorado Supreme Court, concerns a quadriplegic man who used medical marijuana to control spasms and seizures. He was fired in 2010 from his job as a Dish Network customer service representative after a drug test showed he had inactive THC in his system. Coats alleges that his termination violates Colorado’s Lawful Activities Statute, which prohibits employers from firing their employees for engaging in “lawful activity” off of work premises and on their own time (unless that off-the-clock activity interferes with employment or creates a conflict of interest). Coats argues that because Colorado legalized medical marijuana and because he is a validly licensed medical marijuana patient, his off-duty cannabis use is “lawful” under the state’s Lawful Activities Statute.

The trial court and the Colorado court of appeals both sided with Dish Network, ruling that to qualify as “lawful,” an off-duty activity must conform to both state and federal law. Where marijuana is still federally illegal, Coat’s interpretation of the Lawful Activities Statute failed in the lower courts.

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Notably, Coats does not involve an employer’s right to enforce a drug-free workplace. Even after legalization, Colorado, like every state, allows employers to maintain zero-tolerance workplaces. The difference is that Coats involves an employee’s right to use state-legal marijuana off the clock. Employees who enjoy the occasional marijuana happy hour or who use medical cannabis after 5 p.m. and on the weekends should not get too excited though. Based on the previous Colorado state court rulings, it is unlikely that the Colorado Supreme Court will rule in favor of Coats — such a ruling in the context of a Lawful Activities Statute is likely a long way off unless and until marijuana is no longer considered federally illegal activity.


Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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