Firing Up on the Job Can Still Get You Fired: What New Marijuana Laws Mean for Employers

[Editor's note: for full effect you might consider playing the song embedded below as you read the latest on this buzzing topic.] On November 6 of this year, voters in both Colorado and Washington approved initiatives to legalize the possession and use of small amounts of marijuana. What do the new laws mean for employers in the states? Not much, write Nancy Delogu and Chris Leh of law firm Littler:

“Despite the dramatic headlines, a close look at the measures approved reveals that it is unlikely that employers in the affected states will need to take any swift action to amend their drug-free workplace policies or their drug-testing programs on account of these laws.”

Although the laws in each state differ somewhat, they’re similar enough to make some general observations:

1. You probably can’t fire workers for smoking pot on their own time:

“Colorado law does prohibit employers from terminating employees for engaging in ‘any lawful activity off the premises of the employer during nonworking hours’ unless the employer’s decision relates to a bona fide occupational requirement, the employee’s specific duties, or the employer’s efforts to avoid a conflict of interest.” (Littler)

“[Washington’s law] merely decriminalizes marijuana use in prescribed circumstances—none of which pertain to employment.” (Davis Wright Tremaine)

2. Nothing in the laws allow employees to use pot in the workplace:

“[Colorado’s] Amendment 64 contains the following restrictions with respect to marijuana in the workplace: ‘Nothing in this Section is intended to require an employer to permit or to 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.’” (Sherman & Howard)

“The new law does not contain a provision that would protect employees’ use of the drug at work, nor does it provide individuals comfort should they show up for work with the drug remaining in their system… Nor does the law change a 2011 Washington Supreme Court decision which held that employers are permitted to discipline or terminate medical marijuana users who violate workplace drug policies, and are not required to accommodate an employee’s use of medical marijuana.” (Fisher & Phillips)

3. Alcohol provides a useful example:

“At best, marijuana will become a legal drug, just like alcohol. While alcohol consumption is plainly permissible under Washington law (with enumerated exceptions), employers may require alcohol testing, discipline for policy violations, and regulate alcohol use and its effects in the workplace.” (Davis Wright Tremaine)

4. Consider revising workplace policies to reflect the new laws:

“Moreover, employers with written drug-free workplace policies may wish to review those policies to ensure that they clearly express the employer’s policy on marijuana use. For example, a policy that prohibits the use of drugs ‘that are illegal to obtain, or that are not legally obtained,’ may understandably cause an employee to assume that marijuana use is acceptable, provided he or she complies with state law in obtaining that marijuana. A policy that prohibits the use of drugs ‘made illegal as a matter of federal, state, or local law, including marijuana’ is far more clear.” (Littler)

5. The feds may still step in and block the laws before they’re implemented:

“Although the U.S. Justice Department has not yet taken any action against these new laws, they have reminded potential partakers that pot remains illegal under federal law, leaving open the prospect of suing the state[s] to block the enactment of the law.” (Fisher & Phillips)

The updates:

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