Written by attorney Elizabeth Anne Padula

What Employers Should Know About Marijuana Regulation

Marijuana laws have changed dramatically in many states over the last few years. Once criminalized nationwide, now 18 states allow the use of medical marijuana, several others have decriminalized or eliminated jail time for possession of small amounts of the drug, and two states (Washington and Colorado) have legalized the use of recreational marijuana. The changing legal landscape where marijuana is concerned has left many employers wondering what this means for employee drug testing and firing employees for marijuana use.

Federal Law

Despite the various state laws that allow or decriminalize marijuana use, it is still classified as a Schedule 1 narcotic and is illegal under the Controlled Substances Act. Although state authorities may follow local laws on marijuana use, the U.S. Attorney's Office has released a statement saying that the U.S. Department of Justice will continue to enforce federal marijuana laws. This means that any cases of employees suing for wrongful termination over marijuana use that are tried on the federal level are likely to be thrown out on the basis of federal law.

Medical Marijuana

Although it might seem as though the right to use medical marijuana would be protected in states where it is legal, that hasn't been true in the workplace. Even in Colorado and Washington, where recreational use of marijuana is now legal, cases where employees were fired over medical marijuana use found in favor of the employer. In fact, the language in both states' laws specifically addresses marijuana and the workplace. Colorado's law, for example, 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."

Colorado Law

The law in Colorado is particularly important because, in that state, it is unlawful for an employer to fire an employee for engaging in lawful activity during nonworking hours and off-premises. That makes it sound as though an employer cannot fire you for smoking marijuana when you aren't at work, since it is now legal in Colorado. However, despite the legality of recreational marijuana use, at least two Colorado courts have ruled that medical marijuana use does not constitute lawful off-duty conduct. The case Beinor v. Industrial Claim Appeals Office, the court ruled that, although the law in Colorado meant the claimant could not be criminally prosecuted for his medical marijuana use, it did not protect him from being denied unemployment benefits after he was fired for violating the employer's zero-tolerance drug policy.

Washington Law

Unlike Colorado's law, which specifically separates the legality of using marijuana from its use or effects in the workplace, Washington's law does not contain language about employer drug policies. However, a Washington Supreme Court case did find, as was the case in Colorado, that the medical marijuana law did not protect an employee from being fired for medical marijuana use. Cases in other states where medical marijuana is legal such as California have had the same outcome--essentially setting the precedent that just because marijuana use is lawful doesn't mean your employer can't fire you for using it if it violates their drug policy.

Medical vs. Recreational Use

Cases involving employees who were terminated for drug policy violations after recreational marijuana was made legal in Colorado and Washington haven't yet been tried. However, it seems logical that, if courts in multiple states with legal medical marijuana aren't forcing employers to keep workers who use it for medical reasons and with a prescription, they will be unlikely to tell employers that they must keep workers who use marijuana recreationally. For now, it seems clear that employers are free to keep zero-tolerance drug policies without risking legal trouble.

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