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Employees Can Still Be Fired For Legal Recreational Marijuana Use

As a recent Boston Globe article highlights, the impact of laws legalizing the use of recreational marijuana in the workplace remains unsettled. The Globe article discusses a woman who regularly — and legally — used marijuana outside of work, but tested positive for marijuana after she suffered a fall at work. 

It is important to remember that marijuana is still illegal under U.S. law, so many employers still prohibit the use, possession, or working under the influence of marijuana in their company policies.  A complicating factor is that marijuana stays in the user’s bloodstream much longer than alcohol, sometimes for several days or longer depending on the user’s amount and frequency of use.  This creates problems with regard to testing and policy enforcement because the employee could have THC in their bloodstream but not be impaired or “high.”  

This also puts companies in a tough position with regard to their testing policies, as they may be at risk of losing good employees to other companies that don’t test for marijuana.  This is an especially significant quandary in this very tight job market.

Until legislators or the courts provide more clarity, employees who wish to use marijuana outside of work should remain cognizant of their employer’s policies on drug use. Employees should understand whether the employers conduct random testing or not, and employees who work in safety-specific jobs (such as forklift operators, air traffic controllers, etc.) need to appreciate that they are most likely to be subject to testing.

Finally, it is important to note that the Massachusetts Supreme Judicial Court has already ruled that employees who use medical marijuana cannot be automatically fired for flunking a drug test.  See Barbuto v. Advantage Sales and Marketing, LLC.  The Court held that employers need to consider medical marijuana as a prescribed drug and evaluate necessary reasonable accommodations surrounding its use. Employers can still take action against a medical marijuana user, but they have to show that they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business. In some situations, this will be a difficult burden to meet.

Image credit: marijuana 2 by katherine_hitt used under Creative Commons Attribution-NoDerivs License