Welcome to our Ask The Cannabist column. Clearly you have questions about marijuana, be it a legal concern, a health curiosity, a Colorado-centric inquiry or something more far-reaching. Check out our expansive, 100-question Colorado marijuana FAQ first, and if you’re still curious, email your question to Ask The Cannabist at firstname.lastname@example.org.
I received a call for a job I applied for. Great, right? But should I disclose that I have a medical marijuana card during my interview? How do I find out the company’s drug-testing policy, if it’s not readily posted? By asking, aren’t I admitting that I partake? Can an employer legally ask if I do? –Masking Mota Manager
Congrats on your upcoming interview! In terms of employment and medical marijuana in Colorado, the law and many companies’ pot policies haven’t changed much since legal sales began. There are no employee protections for off-duty marijuana (medical or recreational) consumption. There is no legal protection for disclosing your status as a medical marijuana patient.
Here’s a deeper look at applicable employment laws:
Rachel Arnow-Richman, a University of Denver Sturm College of Law professor and director of the Workplace Law Program, summarizes the situation: “As the law stands now, private employers in Colorado are free to drug test workers for marijuana use (including medical marijuana use) and hire or fire them based on the results.”
However, a Colorado law says an employer cannot fire an employee for engaging in lawful activities during off duty hours. Jennifer McPherson, interim director of the Colorado Civil Rights Division, had this to say about the state’s Lawful Activities Statute, a.k.a. C.R.S. 24-34-402.5: “There is a section of the state statute that says it is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours, but it doesn’t specify an employer refusing to hire someone.”
The Lawful Activities Statute is being used to argue the case for Brandon Coats, the former Dish Network employee who was fired for his off-duty medical marijuana use. Although the decision on the medical marijuana employment case is pending from the state’s Supreme Court, we do know the Court will have to consider the Supremacy Clause, which states that federal law has precedence over state laws.
According to Arnow-Richman, “It is possible that the pending Coats v. Dish Network case will change things, but my prediction is that the Supreme Court will affirm the appellate court decision.”
And the appellate court sided with the employer, Dish.
With marijuana remaining illegal federally, its medical or recreational use in Colorado would not be considered a protected lawful activity, experts say. As Arnow-Richman summarized: “As long as that is the case, employers can ask about marijuana use because it is still considered illegal behavior.”
Whether marijuana use is ultimately considered legal or not, there are no specific laws pertaining to employment interviews. McPherson discussed the legal ambiguity in job interviews: “Right now there is no definitive answer in regards to whether or not it is illegal for an employer to refuse to hire a potential employee if the employee discloses that he/she uses marijuana.
In terms of disclosing marijuana use during job interviews, Michael Evans, the attorney for Brandon Coats, said: “Medical information, like sexual orientation, religious affiliation and marital status, is protected information, and a potential employer should never ask questions about those topics in a job interview.” Since medical information is confidential, Evans recommends, “Do not voluntarily disclose your medical marijuana use during your interview … You may be asked if you smoke or use illegal drugs.”
Arnow-Richman elaborated: “There are no laws that specifically govern employment interviews, however employers are prohibited from asking questions about applicants’ health and medical history under anti-discrimination laws. They are also prohibited from asking about whether an applicant has a disability and from making employment decisions on that basis. That is about the extent of the legal constraints on their conduct in the interviewing/hiring process in this context.”
To ask about the company drug-testing policies, Evans suggests not isolating your inquiry to only drug testing. A company’s drug policy is part of the total company employment policies. In the interview, Evans recommends that you ask for a copy of the company policies. Read and review them before signing an employment contract so you know what the company expectations are. XO