In recent history the use of legal marijuana in the USA has collided with the workplace and no more evident in the US’s Southwest States. Such States as California, Arizona and Nevada all have some form of legal marijuana either medical marijuana and/or recreational marijuana. Recreational marijuana is comparable to the use of alcohol. However, even though on the State level marijuana is legal it is still unclear how marijuana users will fair against the rules of employers and if their job is safe or if they can be fired for such use even if it is legal within the State they work in.
A big question has been circulating through the country and especially in the Southwest… The question is… How does the recent legality of marijuana use translate into the workplace and how does it affect workplace rules?
In three southwestern states – California, Arizona, and Nevada –rules relating to the workplace are subtly different.
Citizens of California recently voted to legalize the recreational use of marijuana. Effective January 1, 2017 Californians can buy marijuana at dispensaries without a medical card. Almost immediately the question of marijuana and the workplace returned to the limelight.
From Lexology.com (May 02, 17):
Way back when, in 2008, the California Supreme Court held that employers need not accommodate an employee’s medicinal marijuana use. And it remains the practice for many employers to enforce drug use policies specifying that the employer has a zero tolerance toward working under the influence of drugs, including newly legalized substances such as THC (the active ingredient in marijuana). Unambiguous drug use policies will put even the most dazed and confused employees on clear notice that these “legalized” substances are not tolerated at the workplace. lexology.com/library/detail.aspx?g=a8a100c2-2e49-4896-abb3-bc43be27f823
While the use of Marijuana in the workplace being banned is a common thread in all three states, California has the somewhat unique position in regards to random drug testing.
From Lexology.com (May 02, 17)
California employers may have a legitimate interest in enforcing a drug free workplace, but our Constitutional right to privacy generally protects against a random, suspicionless drug tests. Because an employer’s right to drug test relies on a balancing test (is the employee’s privacy interest outweighed by the employer’s interest in keeping the workplace safe and drug-free?), courts commonly look to whether there are less intrusive ways than random testing to protect the employer’s interest, and typically determine that there are. lexology.com/library/detail.aspx?g=a8a100c2-2e49-4896-abb3-bc43be27f823
Arizona’s law is more cut and dry. As long as Marijuana is illegal under federal law it can be cause for dismissal in regards to the workplace.
Nevada is one of the more recent states to legalize medical marijuana. As with the other two states Nevada does not allow the use or possession of marijuana in the workplace, but does require that employer’s make reasonable accommodation.
As the legalization of marijuana use becomes more widely accepted and has had a long enough time of being legal surely the current confusion with how marijuana use will be tolerated in the workplace should become more clear. As with alcohol employers do not let their employees show up for work drunk and neither will they let them show up for work high. But if an employer has a policy of drug testing and THC is one of the banned substances then today that individual if tested positive to the drug could get fired. However, almost all employers in the country do not care if their employees consume alcohol when they are not working, so eventually marijuana use could be treated the same at which time employees could use marijuana on their own free time without the fear of losing their job.
Even now there will continue to be confusion, different interpretations and the creation of new laws surrounding the legalization of marijuana and how its use will affect the workplace. A best practice for all hiring managers and HR departments is to clearly define the expectations and company rules of their employees in regards to marijuana use and clearly outline what the consequences of breaking those rules would entail. It also helps to work with a professional employment background screening company to create or maintain compliant hiring practices.
To read more about this subject read recent press release found here.