What a time to be alive. More Americans than ever approve pro-marijuana policy changes — 64 percent in a recent Gallup poll — and new states are joining the legalization wave at an unprecedented pace. However, all that green mojo aside, even if you live in a state where cannabis enjoys legal status, you can still be fired for a positive marijuana test.
Why Can You Be Fired If Pot Is Legal and You’re Not High?
According to Will Patterson in the the Portland Mercury (Oregon) “Ask A Pot Lawyer” column, “discriminating against cannabis consumers, even medical marijuana users, is perfectly acceptable.”
And why is that?
He explains that “because cannabis remains detectable in the body for a while after use, there is no generally accepted technology available to test for impairment.” So essentially, if cannabis is in your system there’s no way to know if you’re high of not, so many employers err on the side of precaution. Which, from the employer standpoint makes plenty of sense.
Few employers aware that one of their, say, welders has THC in their system would think “yeah, let’s put em’ out on the shop floor today with all that heavy equipment.”
Or a taxi driver. Or a pilot. Or a medical professional.
Better safe than sorry seems to be the popular line of thinking when it comes to positive marijuana results.
And then there’s this: “employers that either contract with or receive funds from the federal government are required to enforce strict zero-tolerance drug policies under the Drug-Free Workplace Act.”
Can You Challenge a Workplace Termination In Court?
Sure. This is America after all, and we love going to court. Still, the odds at winning a favorable decision as an employee are slim.
Writing for Bloomberg BNA’s Labor and Employment blog, Erin Perugini tells that “an employee facing disciplinary action for marijuana-related conduct might seek protection under state law, but there are not a great number of cases falling in favor of employees, and courts consistently side with the employer in cases of termination.” Citing two attorneys familiar with pot-related employment cases, Perugini says that courts tend to view the matter through the fact that marijuana is still illegal under federal law.
Yet, like most things marijuana, circumstances can be different state-by-state. For instance, in one Colorado Supreme Court case, while “Colorado law prohibits employers from firing workers for engaging in lawful activities outside of work, the court said off-duty use of medical marijuana didn’t qualify for protection because such use, while legal in Colorado, is prohibited under federal law.”
But over in Arizona, state law protects medical marijuana cardholders who have positive marijuana results, so long as they consumed the product outside of work.
The whole matter can be confusing for both employers and employees. As one of the lawyers in Perugini’s article put it, “until the tension between federal and state law is addressed, some of these questions will remain unanswered.”
In the meantime, let’s just say it’s better to pass that marijuana screen.