Everything You Need to Know About Weed in the Workplace

We have entered a brave new world of marijuana use as consumption of the herb is (at least at the time of writing) legal for recreational use in ten states and an additional 21 states for medicinal use.

Back in 2014, Colorado became the first state to legalize weed for recreational use for residents aged 21+, and California has also recently joined the party, stepping up to the plate to fully legalize the adult use of pot on January 1, 2018.

| “However, it is crucial to remember that neither recreational nor medical marijuana laws typically extend into the workplace.”

As such, if you live and work in a state like California or Colorado, rules, and regulations will likely prevent you from consuming marijuana at work. Also, it is important to note that in nearly every state where pot is legalized for recreational use, there are still strict regulations regarding where it can be purchased, where it can be used, and the amount you’re allowed possess.

Additionally, no state forces employers to tolerate weed use at work – in other words, you’re probably best off keeping your joints at home!

Of course, nothing is ever this cut and dry when it comes to marijuana, so in this article, we’ve set out to discuss some of the most important rules, regulations, and marijuana laws in the workplace for 2019 (and beyond). If you’ve ever asked yourself the question ‘can I use medical marijuana at work,’ then this article is for you.

“Can I Get Fired for Using Medical Marijuana at Work?”

Recreational marijuana is treated like recreational alcohol in most workplaces; like it or not, cannabis can impair a person’s mental and physical capabilities, and you can be arrested for DUI if you use cannabis while driving (in some areas across the U.S., just as easily as for alcohol inebriation).

Therefore, it is only right that you’re not allowed to use recreational weed at work – even though state laws may allow it to be consumed (in private places) for adults 21 and up. However, some states have taken things just a little bit too far in terms of whether or not employees can use marijuana in the workplace.

For example, despite the state’s ‘very liberal’ reputation, California law ensures that employers are allowed to fire an employee for using weed — on or off the job. Companies in the Golden State are also permitted to refuse to hire an applicant who has produced a positive drug sample pre-employment screening.

In 2008, Ross v. RagingWire Telecommunications was a famous ‘cannabis-in-the-workplace’ case that went all the way to the state’s Supreme Court. Gary Ross, the plaintiff, alleged that RagingWire, his former employer, had discriminated against him for having a disability. The company fired him after he tested positive for weed, but according to Ross, he was simply using medical marijuana to treat his chronic back pain.

The California Supreme Court ruled that employers in the state were under no obligation to accommodate the use of medical marijuana in the workplace, and were permitted to fire employees for weed use. Fast forward a decade and, while marijuana is now legal for recreational use in California, not much has changed in regard to whether or not you can use medical marijuana while working.

What About Employees Who Use Medical Marijuana for Disabilities?

Despite California’s stance on the use of medical marijuana in the workplace, it is seemingly becoming more difficult for employers to follow through on ‘zero tolerance’ policies due to new state laws which have legalized the medicinal use – and possession – of weed.

In fact, the American Disabilities Act (ADA) prevents employers from discriminating against ‘qualified individuals’ due to a disability. In this case, companies seemingly have to offer ‘reasonable accommodations’ to staff with disabilities, in order to ensure that they can perform their role’s essential functions.

A ‘qualifying individual’ may have a medical condition such as Crohn’s Disease, permanent nerve-related disorders, a seizure disorder, or some other serious condition. For these qualified patients, the use of medical marijuana at work would obviously have a ‘positive impact’ on their ability to perform their job, which provides the assumption that regulations under the ADA would allow them to use their legal medical cannabis while working – just as they would be allowed to take any other form of (legal) meds.

Furthermore, when used as an actual doctor-recommended medication, medicinal weed would surely be deemed essential to a person’s ability to perform his or her job in the workplace. In the famous case of Gary Ross, however, he was unable to prove this – and ultimately got fired for using medical marijuana at work.

In California, even companies with a ‘Don’t Ask, Don’t Tell’ policy are legally allowed to fire anyone who tests positive for marijuana in a drug test. The problem here is that these tests don’t show when the cannabis was used, so there is no way of knowing if the employee was under the influence of pot while actually in the workplace.

It seems unfair to fire someone for using medical marijuana at home, especially in a state where it is legal for both recreational and medicinal use.

| “Case in point, imagine the outcry if an employee was fired for testing positive for alcohol due to the two glasses of wine they had the previous evening at home!”

In 2015, the Colorado Supreme Court ruled that companies can still fire staff who use medical marijuana. It held that weed use is unlawful under federal law, so even medical marijuana can’t be classified as ‘lawful’ under the state of Colorado’s off-duty conduct law.

Furthermore, back in 2012, a paralyzed medical marijuana patient by the name of Brandon Coats was fired for failing a drug test after ingesting a normal amount of his presumably-legal doctor-recommended meds. He took the case to the state’s Court of Appeals, and it ended up being this exact case that led to the infamous Supreme Court ruling back in 2015.

Some States Offer Protection for Weed in the Workplace

That being said, a number of states have enacted laws which offer an element of protection to employees who need to use medical marijuana at work in order to carry out the duties of their roles effectively. In New York, for instance, the 2014 Compassionate Care Act (CCA) provides that employees who are certified marijuana users are safe from ‘disciplinary action by a business’ for exercising their right to use medicinal weed.

In the state of Massachusetts, the Supreme Judicial Court has ruled that medical marijuana patients who have been fired for a positive marijuana drug test are permitted to ‘seek  legal remedy’ (the ruling came as part of the Barbuto v. Advantage Sales & Marketing, LLC case back in September 2015). Plaintiffs can make a claim of handicap discrimination, which is in violation of Massachusetts state law.

In the particular case of the aforementioned trial, the Massachusetts Supreme Judicial Court stated that Advantage Sales & Marketing should have tried to engage in the interactive process to determine if Barbuto’s use of weed in the workplace could have been accommodated.

Barbuto had Crohn’s disease and had informed her employer about the legitimate need to use marijuana to treat her condition. When she tested positive for cannabis, she was fired under the firm’s ‘zero-tolerance’ drug policy.

The advantage claimed that, because marijuana is federally illegal, it was under no obligation to accommodate its employee. The court explained that Advantage was in no danger of violating any law by allowing Barbuto to use medical marijuana. Moreover, the court ruled that it was unfair for the plaintiff to be forced to choose between her job and her health.

Meanwhile in Rhode Island, the 2017 case Callaghan v. Darlington Fabrics was also a victory for medical marijuana users. The state’s Supreme Court ruled that an employer’s enforcement of its drug testing policy to dismiss an applicant because she used medicinal cannabis, violated Rhode Island’s anti-discrimination provisions with regards to its medical marijuana law.

The plaintiff, Christine Callaghan, was referred to Darlington as she searched for an internship. She openly admitted that she carried a medical marijuana card when told about the upcoming drug test, and stated that she would fail the test as a result. Darlington’s HR coordinator, Karen McGrath, informed Callaghan that she would be ‘unable to hire her.’

Additionally, things are looking up for residents of Maine who enjoy marijuana during leisure time. In February 2018, it became the first state to protect employees who use cannabis outside of work hours. The Maine Department of Labor has ruled that cannabis should be removed from the list of substances tested by employers.

| “The new Maine law also states that companies cannot refuse to hire someone for consuming marijuana outside the organization’s property.”

In what is an all-around encouraging move, the Department has made an effort to offer protection for companies too; employers are permitted to ban marijuana use in the workplace, and they are free to discipline anyone who breaks the rules.

However, a positive drug test is no longer enough to prove that a staff member was under the influence of cannabis while at work. This is great news because urine tests often show marijuana days after it was used. Theoretically, you could use weed over the weekend and, if you have to take a drug test on Monday, it may show up and cost you your job.

Final Thoughts on Marijuana in the Workplace

All across the U.S., ever-changing marijuana laws are proving a serious challenge for HR departments of companies in states where cannabis is legalized. Not only are these companies having to adapt their policies extremely frequently, but they are also faced with moral (and legal) implications based on actions that they do or do not carry out.

| “It seems incredible that a person who is approved to use cannabis to combat a medical problem, can be fired in multiple states.”

Realistically, how are these individuals supposed to do their job to the best of their ability if their performance is hampered by a medical problem they are not allowed to treat?

As employers such as Darlington Fabrics in Rhode Island and Advantage Marketing & Sales in Massachusetts have found out (at their own expense), some states require employers to engage in an interactive process to see if the marijuana user can be accommodated.

Unfortunately, this is not enough and since many companies still ignore this process, we expect several more Supreme Court cases in different states in the near future.

It also seems a bit odd that in states such as California and Colorado, where weed is legal for recreational use, employees can have their contracts terminated for using marijuana recreationally — even if they consume entirely away from the workplace.

All in all, no one is reasonably suggesting that we should be allowed to get stoned at work(any more than we should be allowed to get drunk at work). Therefore, you really can can’t complain (or be surprised) that you’re forbidden from eating an edible at lunchtime when company policy prevents staff from drinking a glass of beer.

The bottom line seems to be that – at least in states where marijuana is legal for recreational use – employees should be allowed to use cannabis outside of work. In states where weed is legal for medical use, qualifying individuals should no doubt be permitted to use the herb to treat their medical problems. Maine has displayed admirable common sense by removing cannabis from employment drug testing, and we hope that other states follow suit in the years to come.

By: Nicole Richter

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