Legal Pot Raises Workplace Questions
You may remember a couple of years back when a Walmart employee, once name Associate of the Year at his store in Michigan, was fired from his job after testing positive for marijuana use. What made this story different at the time was that the employee in question was using the drug as prescribed by a physician to ease pain caused by a brain tumor and sinus cancer. The law in Michigan stated that employers did not have to make accommodations for workers who take the drug for medical reasons. If the test was positive, the employer could fire the worker.
Another similar but more recent case involved a paralyzed telephone operator for Dish Network who was fired after failing a drug test. In this case, the individual also was using marijuana with a doctor’s prescription. After being fired, the man who lives in Colorado sued to get his job back arguing that he was engaged in a lawful activity and should be protected under state law. In particular, the man points to an existing law that prevents employers from firing employees who smoke cigarettes when they are off work.
Now that the states of Colorado and Washington have held votes making the use of marijuana legal for recreational purposes, the issue becomes even more complicated for employers. After all, companies do not fire employees for alcohol consumption outside of the workplace if it doesn’t affect job performance.
Employment lawyers, according to an Associated Press report, are urging companies to clearly define what their policies are and communicate the information to employees.
In the case of legal marijuana in Colorado, Kevin Caulfield, a spokesperson for Denver-based Red Robin Gourmet Burgers, told the AP, "If a drug is legal, as long as it’s not abused or misused, it would not be something covered by the policy."
Discussion Questions
How should retailers deal with employees’ use of marijuana outside of the workplace if it is legally approved for medical or recreational use under state laws where the business is located? Should other legal prescription pain medicines be treated any differently than marijuana relative to the workplace?
If a drug is legal, if its use does not effect a worker’s ability to do his/her job, and if it is not abused, it should not impact the worker’s job status.
This is very straightforward. What people do on their own time is nobody’s business.
Do I want to make sure the person piloting the plane I’m flying on is neither drinking nor pot smoking on the job? Absolutely.
Do I care if the CIO had a drink or smoked some pot last night? Not in the slightest.
And if it’s okay to take a vicodin for pain while working, it’s okay to use other prescriptions as well.
Employers should be able to set their own rules for employment. If you are assigned guard duty at the Tomb of the Unknown Soldier, you are not allowed to drink alcohol at any time. I see no reason why an employer can’t have rules that restrict employees from engaging in any kind of behavior they decide, whether its taking medication or participating in legal activities outside of work.
If you know up front before signing on that an employer doesn’t want you drinking, smoking, or engaging in dangerous behavior, etc, so be it. It should not matter if something is legal or illegal, the employer should be able to make up any kind of rule they like. Employers should be able to hire and fire as they please. Employees should be like a guest in someone’s home and if the employer doesn’t feel comfortable with having them there, the employer should have the right to expel them.
I guess it you are going respond to this post you need to state whether you are a user or potential user. The answer to both questions at this time is no. Now that this disclaimer is out of the way. Here is my non-legal opinion.
1. This is going to become one big can of worms. The lawyers should love it. Making money giving advice.
2. The problem with marijuana compared to alcohol is that marijuana stays in the body for a long period of time. Alcohol does not.
3. As I understand in the case of labor laws, which ever is stronger is the one that is enforced. In this case federal law is stronger so it would seem to prevail.
Let the fight begin.
If they do not show up for work stoned and they do their job, there is no problem with it. People go out and drink all night, and show up for work, so to me there is no difference.
The slippery slope is drug testing in states where the pot is legal. This could get interesting, and make some law firms very rich.
Too much risk for litigation and insurance premiums will skyrocket. Not a chance.
I never understood drug testing in the workplace, and in an environment like we have today, it makes even less sense. Workers should be promoted or fired because of their productivity at work, not artificial metrics that don’t measure their contribution at work.
The use of marijuana for “legitimate” medical conditions is something everyone should agree on and should not be punished via job dismissal. Recreational use is another matter. Is marijuana a “gateway” to harder drugs? There is no conclusive answer no matter what you hear or want to believe.
The two keys are safety and external communication, including customer service. Just like everything else, outside of work cannot be completely controlled by any company. If the activity gets the person in trouble, the company can be less than lenient with them.
The problem is employees smoking a joint on their way into work. Being impaired on the job endangers the worker and co-workers, thus making the company liable. Just look at workman comp rates.
This is a clear-cut case of legal precedents. Legal drugs, regardless of the employer’s view, are legal for use outside of the workplace. Whether they are prescription, alcohol or marijuana, all would be considered legal, and thus would not be under the purview of the employer outside of the workplace. The employer cannot determine activities outside of the workplace so long as they are legal.