Marijuana Legalization Presents Predicament for Employees - TheStreet

NEW YORK (MainStreet) — Partaking in smoking marijuana where it is legal recreationally is now a viable option for adults 21 and up, but your employer may not agree.

Even if you live in Colorado or Washington where recreational use of marijuana is legal for adults, employers can still fire you if they have a zero tolerance drug policy, said Liza Getches, a partner at Moye White, a Denver law firm.

"Even though it is legal in Colorado and you could have smoked marijuana several weeks ago on your time, it can still show up on a drug test," she said. "Your employer can legally fire you and there is nothing you can really do."

If you indulge in smoking cannabis during a trip to Colorado or Washington, but live in the other states where it is illegal to smoke the drug recreationally, the law is not on your side. If you are faced with a random drug test and it comes back positive, you could still lose your job.

Some industries have more stringent requirements, because they have contracts with the federal government, so employees of airlines are required by the Federal Aviation Administration to undergo mandatory drug tests, Getches said. Even if you are a contractor working for the government and your job is driving heavy trucks or machinery or you work at a factory or plant, you will probably undergo random drug tests due to regulations set by the Department of Transportation.

If your Colorado employer does not have a policy regarding drug use and you are fired for lawful off-duty drug use, then the dismissal would likely not be held up in court, she said.

Also See: Impact of Marijuana Legalization on the National Tax Base

"Post-legalization, you're in a safer position to smoke in your off-duty life, but it's not risk-free," Getches said.

The tension has surfaced most prominently in a case to be decided by the Colorado Supreme Court later in 2014, involving Brandon Coats, a quadriplegic who was fired by Dish Network in 2010 for using marijuana for his pain while off the clock. Lower courts have ruled consistently that employers do not have to tolerate the use of marijuana by employees in states where the state law permits it.

Coats is claiming that a Colorado statute holds that people can't be penalized for participating in legal activities while not at work. The Supreme Court will examine whether the state's constitution gives medical marijuana patients a right to use cannabis. Colorado voters endorsed the adult use of marijuana in 2012.

"It doesn't sound right but even if you're legally smoking pot off duty, the Colorado Court of Appeals in the Dish Network case has held employers can fire employees in accordance with a drug-free workplace policy since marijuana is still illegal under federal law," Getches said.

While the law remains murky in many areas, there are many caveats to watch out for. The laws regarding the use of marijuana or being impaired are still complicated and will only become clearer if and when the federal government changes its outlook, Getches said.

The main issue is that the federal law prohibiting the recreational use of marijuana is still trumping state law, she said. Users are also forced to smoke within the confines of their homes and cannot partake on the streets or in public places.

"Since marijuana is still a regulated illicit drug, employers can still terminate you," Getches said. "Now is not a time to relax policies in the workplace and it is still up to the employer on what they want to do. They are not making it easier for employees."

In other instances, the law is on the side of the employee. For instance, if you go to a bar and get intoxicated, act obscenely and your employers finds out, they are not allowed to fire employees for their behavior in Colorado, she said, because there is a lawful off-duty activity statute.

While employers have become more lenient with certain of their policies such as having alcohol as company office parties, the same extension is not being given to marijuana in many instances.

One of the issues regarding marijuana is that you can not test the level of impairment since THC, one of the 483 known compounds in the plant, can stay in your body for 30 days or longer, said Danielle Urban, a Denver partner with Fisher & Phillips, a national labor & employment law firm.

"The law is on the side of the employers instituting whatever policy they want to have in place," she said.

Even if you are using cannabis for medicinal purposes, you are not exempt. However, many employers want to accommodate the medical needs of their employees, Urban said. Some companies will recommend that employees take a leave of absence.

Other employers want to maintain a separation between your work and private life.

"Many employers prefer not to deal with your private life," she said. "Some employers have decided they just do not want to know and do not drug test their employees."

Employees should be wary of violating their company's policies and should play it safe to protect themselves, Urban said.

"Many people would be surprised they can lose their jobs for something they engage in on their own time," she said.

--Written by Ellen Chang for MainStreet