Marijuana is now legal – to one degree or another – in 23 states and the District of Columbia. Logic would tell us that employees in these states can now feel free to light up during their time spent away from work, right?
Few of these states require that employers make any allowances in their policies for employees wishing to use the herb, whether medically or recreationally; as a result, the “zero tolerance” drug policies that have existed for decades, in some cases, are still in place and strictly enforced. In fact, there have already been several state cases in Oregon, California, and Washington State that shore up employers’ rights to fire or discipline workers who test positive for the drug. As an example, Washington D.C. (where marijuana was legalized for recreational purposes as of February 26, 2015) is the only place to even acknowledge the divide between legalization and employment drug policies. Emergency legislation in the District actually banned prospective employers from requiring drug testing of candidates before making a job offer. Still, employers retain the right to conduct drug tests on applicants after the job offer, and on an ongoing basis during employment.
In Colorado, positive drug tests have increased, and a 2014 survey showed that 71% of the state’s employers left their drug policies in place even after marijuana legalization took effect. Further, 21% of employers put stricter drug policies in place in the wake of marijuana legalization. The bottom line is this: any trace of marijuana in an employee’s system can be grounds for discipline up to and including termination in most states.
On the other side of the coin, a handful of states do have laws that protect employees from termination due to engaging in lawful activities. To this point, those lawful activities have primarily consisted of tobacco and alcohol use; however, there is currently a case before the Colorado Supreme Court – Coats v. Dish Network – that may redefine how marijuana use and employer’s drug policies interact with one another in the future. One of the questions posed by Coats’ lawyer is, if the courts rule strictly against patients who use medicinal marijuana, whether legalization is really only for the unemployed.
While there are a few employers, like Khalid Pitts – the owner of Cork Wine Bar in D.C. – who says he “feels bound” by the legalization of marijuana in his city and is not worried about his employees partaking of the herb on their own time, most others seem unwilling to relax their policies, no matter what their respective state laws say. For now, the safest bet for employees would appear to be abstinence.
The Cedalius Group, the employment background screening provider you can trust, is well aware of the shift currently happening in marijuana law across the country and we are diligently tracking the trends as marijuana is legalized for medicinal and recreational purposes on the state level. As the laws continue to evolve, we can help you adjust your drug policies to match both local and federal requirements. Call us today at 404.963.9862 or contact us online to learn more!
The Cedalius Group offers insight into the background screening industry for educational purposes. We always recommend you consult with your legal counsel to determine practices that best suit your business needs.