Let’s say your company’s drug-free workplace policy bans employees from working under the influence, whether it’s alcohol or drugs. How do new state marijuana laws impact that policy?
Lawyers in Colorado, where it just became legal for state residents to purchase up to one ounce of pot for recreational use, say employers can keep their drug policies just as they are. Nothing needs to change because of the new law.
That seems pretty clear. But you can bet some employees who keep hearing that small amounts of pot are now legal in the state will be confused. Doesn’t that mean a get-out-of-jail-free card if your workplace drug test comes back positive for weed?
In a word, no. The law addresses pot and the workplace directly:
“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace, or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
There are other reasons why employers can still legally fire employees whose drug tests are positive.
One is that firings have been allowed in medical marijuana cases, including one that reached an appeals court in Colorado last year.
Dish Network employee Brandon Coats was paralyzed as a teenager in a car crash. He has been a legal medical marijuana user in Colorado since 2009. He was fired in 2010 for failing a random company drug test.
The employer didn’t have to claim Coats was impaired on the job. He violated the company’s drug policy, and that was enough to fire him, said the Colorado Court of Appeals in April 2013. Coats’ lawyer has appealed to the Colorado Supreme Court.
Another reason companies may actually be forced to keep drug-free workplace policies: federal law. Not the one that makes marijuana possession illegal, but ones addressing transportation and federal contracting issues.
Employers still have to comply with Federal Motor Carrier Safety Administration regulations. Also, if a company has a federal contract, it’s required to have a drug-free workplace policy.
In an article on cobizmag.com, David Vine, HR manager for Swingle Lawn, Tree and Landscape Care in Denver, says the company’s drug-free policy is a matter of safety. The company’s employees are “operating chainsaws and climbing 60-foot trees,” Vine said.
While you don’t have to change your workplace drug policy in the states allowing recreational pot (Washington becomes the second such state later this year) or medical marijuana (20 states plus Washington, DC), this might be a good time to reinforce your policy with employees. No doubt some will think new pot laws change the situation when that’s not the case.
Has your company changed a policy in light of a new state marijuana law? Are employees confused about this? Let us know in the comments below.
Problem is, urinalysis with weed is NOT giving you any information about current level of impairment (if any). Marijuana metabolites can stay in the system for days, even weeks, depending on amount of use, user metabolism/body fat, and other factors. So testing positive for marijuana in a urinalysis test is NOT telling an employer that the worker was high on the job: only that s/he used marijuana at some point in the past. Most other drugs are water-soluble. So, let’s say an employee works four ten-hour days, three day weekend. Every Thursday night, she snorts a little coke. By Monday morning, it’s most likely out of her system, and will never be detected through urinalysis. And she’s no longer under the influence (effects with cocaine typically last only a few hours) so no worries there. BUT: that same employee smokes some pot on Thursday night, she’s likely to test positive on Monday, even though she is no longer under the influence.
So the laws might not change, but the way we do testing sure had better.
Company policy and Federal Law will always trump state laws. Also, it goes to lifestyle, for me……if you use drugs for recreational purposes; then you are not as desirable of an employee as someone that doesn’t, In my opinion.
Actually, no. This law legalizing the recreational use is but one of a bunch of examples I can think of. And how is someone that uses drugs “recreationally” any different that someone who drinks “recreationally” and what then, makes one more desirable than the other? Your opinion? Not worth much. I would never advocate the use of drugs or alcohol for anything more than social use, and don’t really engage in any of it myself. But people ought to be free to do what they want to the limit of affecting performance or causing harm to others. Companies will have no choice but to change their workplace policies or get a better testing regimen to determine influence as opposed to use. I would advocate the latter.
but some policies also state possession so if it is in your body under some state and federal laws that counts as possession so whether they are under the influence or not they could still be in possession.
No it is not possession. Why? Because current drug tests only test for metabolites (the leftovers) not the actual drug. The the rules of evidence mean courts will not accept anything but the drug itself. But administering tests for the actual drugs destroys the surveillance aspect of testing, in other words, we would not know what you are doing at home.
Perhaps we need to rethink the way we test for drugs. Otherwise, we may as well announce that water soluble drug use on the weekend is okay, but fat soluble drugs are a no-no.
What I hear is that people want to get high, so let them but their employer is not responsible for their lifestyle if a test comes back positive. People can make their own choices within the law and so can employers. Using a drug or alcohol that may cause a work place accident is unacceptable.