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Hey, Cannabist!
If a person visits Colorado and legally purchases and consumes recreational cannabis then returns to their home state, where cannabis is not legal, and tests positive on an employer drug test, do they have any recourse or protection from the employer terminating them?
–Vacationing Viper
Hey, Vacationing Viper!
The short answer is no — an employee does not have legal protection from being fired for a positive marijuana employment drug test. If you consume marijuana legally in Colorado, you can still be fired in your home state. In fact, Colorado residents are not protected either; a 2015 ruling by the Colorado Supreme Court upheld an employer’s ability to fire workers for off-duty medical marijuana use.
I corresponded via email with Rachel Arnow-Richman, a law professor at the University of Denver and director of the school’s Workplace Law Program for more details on employment law.
The reason there is no protection, according to Arnow-Richman: “In almost every state, employment is ‘at will,’ meaning employers are permitted to terminate for any reason or no reason at all (the only restriction is that they cannot fire for a reason affirmatively prohibited by law). This means that the legality of the employee’s recreational marijuana use is irrelevant. The employer can fire the employee for lawful recreational behavior (consuming alcohol, for instance) as much it can fire for unlawful behavior.”
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In some circumstances, an employee’s off-duty conduct is specifically protected. Arnow-Richman says, “For instance, an employer could not fire the employee for attending a church because religious practice is protected by anti-discrimination laws.” Marijuana use is not legally protected this way. “A small number of states that have legalized medical marijuana have chosen to specifically protect from employer retaliation, but those protections apply only to medical use and only in that state,” notes Arnow-Richman.
Another consideration for large companies is consistency in company policy. From Arnow-Richman’s perspective, “Large employers understandably want to have standardized policies that work across states, and it is certainly not unreasonable to have a policy that employees who violate the law may be subject to discipline or termination. To the extent Colorado is still an outlier on this issue, one can see why a multi-location employer would rather keep an across-the-board policy against recreational marijuana use than create special rules for Colorado, and to the extent that all marijuana use continues to be against the federal laws, it is easy for them to justify this.”
Workplaces that will adapt employee policies toward tolerating off-hours marijuana use have many issues to consider. Arnow-Richman says that “ultimately, employers’ acceptance of employee recreational marijuana use is going to depend on a combination of factors, including the culture of the particular employer, the type of job at issue (whether the work is dangerous or creates risks to the public), and the experience and knowledge of supervisors and human resources professionals about the impairing effects of marijuana use and how long they last.”
In the future, we might see companies purposely appealing to marijuana consumers for employment. “The flip side of the concerns about safety and consistency is whether some companies might want to market themselves as employers of choice to recreational marijuana users. It’s conceivable that a CO employer who wants to recruit from the demographic might want to present itself as a “lifestyle” friendly employer. It is possible that this already happening unofficially, though I imagine we are a long way toward it being widespread or something that employers would acknowledge.”
Last month, U.S. Office of Personnel Management issued a statement for Federal employees in light of Washington D.C.’s marijuana legalization. The notice is a recap of the federal definition of marijuana as a controlled substance, a reminder that marijuana use is not allowed by Federal employees. The statement says marijuana use by job candidates negatively impacts their suitability for federal employment.
On a related note, Colorado vape pen company OpenVape clarified its company policy in April 2014 to ban consumption of marijuana while on the job or use of cocaine at any time.
XO
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