If you have a job, a government job, or a job in the private sector, you want to make sure that you do nothing to jeopardize that position. But that includes understanding what rights you have, how you might get tested for marijuana use at work, and whether or not your job is safe if you choose to smoke recreationally or with a prescription.
There has been a great deal of publicity regarding the approval of recreational marijuana in multiple states. But it is important not to confuse the legality of smoking with the freedom to do it whenever and wherever you choose. Think of it like drinking. If you are of the right age, you can legally drink alcohol but that does not mean that you can drink it at work or show up to work drunk. The same is true of marijuana. You can still be refused a job for smoking marijuana or be fired for it under certain circumstances.
It is important that employers and employees understand that the legality of marijuana does not impact the right employers have to maintain or enforce drug-free work environments. It also does not prohibit companies from being able to administer drug test and enforce termination or disciplinary action as a result of a positive test, when it violates policy.
Laws pertaining to the legality of recreational marijuana specifically state that the laws should not be construed or interpreted to:
● Restrict the rights of private and public employees to maintain a drug and alcohol free work environment;
● Require employers to permit or accommodate marijuana use, possession, sale, growth, transportation, display, or transfer within the work environment;
● Affect the ability of employers to maintain policies that prohibit the use of marijuana by prospective employees or current employees; or
● Prevent employers from complying with federal or state laws.
In fact, even in the states where recreational use is approved, under federal law marijuana is still considered a schedule 1 drug which means it is prohibited by the Controlled Substances Act.
States like California have a law prohibiting employers from taking adverse action against an employee for lawful off-duty conduct (Labor Code section 96, 98.6). However, California courts typically state that these laws apply to lawful, off-duty conduct related to any type of political activity not marijuana use. Colorado has a similar law which protects employees for lawful off-duty conduct but in cases where employees challenged a dismissal for a positive marijuana test the courts stated that the employee could still be fired because marijuana use was illegal under federal law and therefore did not fall under the protection of lawful off-duty conduct.
Can I get in trouble or be fired for using recreational marijuana outside of work?
This is where things get slightly more complicated. Once more, it is important to understand that these new laws do not prevent your employers from being able to maintain a work environment that is free for marijuana. To that end the answer is based on your employer. if your employer does not allow you to be on drugs of any kind when you are in the workplace or to have recently consumed them immediately before starting your shift such that you are unable to complete your regular duties, then you can in fact get in trouble for consuming marijuana in your free time. Again, think of it just like alcohol or prescription drugs. If you have been prescribed a medication of any kind or you are drinking alcohol, both of those are likely to be perfectly legal in your spare time however you cannot show up for your shift still drunk from the night before in most situations nor can you operate your forklift if you are on prescription pain medication after a car accident.
Some employers require that you cannot consume any drugs recreationally and still be under their employ. In these situations you will be notified ahead of time if this is a current employer. If you are applying for a new position you will also be notified as to the company drug policy. These companies are allowed to administer tests on a random or regular basis contingent upon the state laws to test for any drug use. If you sign a document for a company where you agree not to use drugs, and you test positive for recreational marijuana use, you can still be terminated or face disciplinary action. It must be stressed once more that this applies to recreational use, meaning those situations where it might be perfectly legal to buy marijuana but your job may not allow you to consume it.
It is up to you to be diligent about reviewing the company policy so that you can comply appropriately. Companies are required to explain what their policies are and provide you with notification if those policies should change.
Improper drug testing
Companies that require drug testing can only pursue disciplinary action or termination if that test was administered legally. If the test used by your company violated the law then you cannot be fired for positive marijuana results. Federal law does not place any restrictions on drug testing but many individual states do and states have laws that address when and where your employer can conduct drug tests. Employers typically have a lot of leeway that they give their applicants more so than they give current employees. Once you have been hired or received a conditional offer of employment employers can conduct routine drug tests. In certain states however employers cannot conduct random or routine tests of employees who have already been hired without cause. These specific reasons could include the following:
● employees appear intoxicated or under the influence at work;
● employees are involved in a work-related accident that resulted in property damage or injury;
● employees are returning to work after involvement in a rehabilitation program; or
● employees hold a safety-sensitive position
Even if your employer has the right to legally test you states impose procedural requirements that have to be followed. For example, many states require your employer to:
● provide advanced notice to the applicant or the employee that drug testing will take place;
● use a lab certified by the state;
● pay for the testing costs;
● provide applicants and employees the opportunity to challenge the results;
● administer the test in a way that minimizes privacy intrusion
Can I get fired for being high or having a positive drug test with or without a prescription?
If you live in an area where marijuana is legal and you are using it for medicinal purposes with a prescription, the bottom line is that you will more than likely be protected from any termination or disciplinary actions that come from a positive drug test.
There are many types of private employers that require drug tests for their employees among them include many government positions within the private and public sector. These employers have to test employees to guarantee public safety in many situations which effectively means they are conducting their due diligence to make sure that employees are not impaired while on the job and, that said impairment does not result in harm to customers or the general public.
State laws vary with regard to how employers can test employees for drug use. Some states don’t allow random testing while others allow it. Even if your employer has the right to test you legally that doesn’t mean that a positive result can result in termination or discipline. The American Disabilities Act protects qualified employees who have a disability which means those who are able to perform their essential job functions even if they are taking a legally prescribed drug for their disability. So, if you are taking marijuana as a prescription for a disability and the drug does not impair your ability to perform your job safely, your employer cannot penalize you or fire you based on a positive test alone. The key here is that you must be able to perform the essential duties of your job with or without accommodation. If you were unable to properly perform your duties as a result of being high, it will not matter that you have a prescription. It is in your best interest to disclose this ahead of time so that your employer is not caught off guard by a positive test. Your HR department will be a great place to start.
Overall, the laws that allow for recreational use of marijuana do not protect you against disciplinary action in the event that you violate your employee- employer contracts or workplace safety and drug free requirements. This is going to be based on an individual workplace basis and your state. You will need to review the company policy not only for a company that you work for but for any companies that you are considering working for in the future. It is also important to understand how drug test can be administered so that you can legally fight disciplinary action or termination in the event that your employer improperly administered a drug test. Finally, those who have prescriptions need to make sure they do what they can to comply and inform.