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Can I Be Fired For Smoking Pot?

In states where cannabis is legal, employees still face termination.

States that have legalized recreational marijuana use have seen steady population growth in recent years. Despite this sudden upswing, Colorado has one of the lowest unemployment rates, at only 2.9% as of this April. The country itself is at 3.8%, the lowest it has been in eighteen years. This tight job market already makes it difficult for employers to find employees, and the job pool is only restricted further as more and more talented workers are losing their jobs due to failed drug tests. With marijuana legal in nine states and Washington, D.C. and the attitudes towards pot shifting, employers around the country are finding that it is becoming too costly for them to continue performing pre-employment testing for marijuana.

In some states, even with the legalization of recreational marijuana, there have been no changes to the laws around workplace drug testing. One clause in the Colorado act specifically states that workplace drug policies would not be affected. Similarly, the ruling in California says "it does not violate [California's laws against workplace discrimination] to terminate an employee based on their use of marijuana, regardless of why they use it." This applies even when the marijuana use is recommended by a physician. It has been noted that many of these stipulations were included to appease the business communities and were needed in order to pass.

Currently in these states, all employers have a right to deny employment to anyone testing positive for marijuana and fire anyone testing positive on random drug screens. Several cases have been brought before court, and even though the employees held prescriptions for medical marijuana, the majority of these cases were found in favor of the employers because it is still classified federally as a Schedule I drug, the same category as heroin, and there's not yet a legal precedent to rule otherwise.

There are a few states that require employers to tolerate medical marijuana use. Surprisingly, none of these are states that have legalized recreational use. Arizona, Delaware, Minnesota, and New York all consider firing someone for the use of medical marijuana while holding a prescribed card to be discrimination against a person with a disability*. They can test during situational drug tests, however, as it is still against the law for workers to be under the influence of marijuana at work.

Maine passed a recreational marijuana law in November 2016 and while some provisions, such as the actual sale of it, were delayed or further questioned, one that took effect on February 1, 2018 prohibits employers from refusing to employ someone or terminating someone solely because of the person's use of marijuana outside of the workplace, whether it be medical or recreational. Although the wording is vague, the Maine department of labor is enforcing it as employers may not test for it as part of a pre-employment drug screen. As seen in the states with medical exemptions, no employer is forced to allow the use of marijuana on location or during work hours.

We can expect to see most of the legal states start to follow Maine's precedent. Colorado and California both have legislation in the works for similar changes. The Denver chapter of the NORML (National Organization for the Reform of Marijuana Laws) has proposed a bill that would "amend the unlawful prohibition of legal activities as a condition of employment, to clarify that legal activities include legal activities under Colorado law, such as adult marijuana use." Judd Golden, legal counsel for the chapter and author of the bill, has suggested that the current method of drug testing is "antiquated," since what it tests for, the metabolites of marijuana, can remain in a user's system for a significant period of time. Golden offers an alternative method – what they call "impairment testing." This is a program to test cognitive alertness created by a local Colorado organization called Predictive Safety, which includes a 60-second test on a tablet or smartphone that is accessible at AlertMeter.com. This would allow employers to better determine whether or not an employee is impaired while on the job.

Although this bill has not yet reached the floor of the state legislature, we do see some Colorado companies beginning to drop cannabis from their drug panel when testing employees. A Mountain States Employers Council survey from December of 2016 showed a decrease in Colorado companies testing for marijuana to 66% from 77% in 2015. This is their most recent published study on the topic, but the trend appears to be continuing today. Jobs in safety-sensitive fields, like transportation or the use of heavy machinery, will continue to require drug tests and the majority of the companies that have removed pre-employment testing from their processes still reserve the right to test following an accident or if the employee appears impaired. However, despite what many were expecting, a report recently released by the National Academies of Sciences states that there is not sufficient evidence to support a link between the legalization of cannabis and an increase in workplace accidents or injuries.

With the coming elections, employees may see more freedoms, but should still be cautious and inquire with potential jobs about their stance. Employers should be very clear when stating their workplace drug policies. It seems that despite the progress being made, this barrier to employment will not be completely destroyed until marijuana is made legal on the federal level.

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