Politicians and reporters today may claim that marijuana is legal in Colorado and other states, but in some senses, it’s still not. While you will not get thrown into jail for smoking a joint in those states, there’s no addendum to the law that says employers can’t decide to administer their own drug tests.
Unfortunately, too many people think that since pot is legal, smoking pot will come without consequences. If you believe that, take a look at Amendment 64, the provision which legalized pot in Colorado. If you read the entire thing, you will notice that the amendment states:
“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
And it is not just Colorado that has such a section. DC’s Initiative 71, which legalized the ownership of marijuana in the city, also permits employers to fire employees for using marijuana, even if it’s outside the workplace.
To some degree, that is not totally unreasonable.
But what about medical marijuana? If a doctor approved the use of marijuana, as is the case in 24 states, then employers would have no grounds to fire their workers, correct?
Unfortunately, that is not the case, as the Brandon Coats ruling proves. Coats is a quadriplegic who used marijuana when he was not working at his job as a Dish customer sales representative, in order to control pain and leg spasms. He was fired from Dish for failing a random drug test, and he sued claiming that using medical marijuana was legal under state law.
But last year, the Colorado Supreme Court ruled against Coats, affirming that businesses can fire employees even for off-duty medical marijuana use; and given that the ruling was 6-0, it is unlikely that this ruling will be overturned anytime soon.
From a legal perspective, it is somewhat understandable. Employers do have wide latitude on their reasons for firing employees, and they often conduct background checks to see if you have any kind of record. But it is incredibly frustrating that while no one tests to see if an employee drinks or smokes cigarettes when off hour, an innocent act like smoking marijuana can still see punishment; just not in the form of a jail cell.
So, if you regularly smoke marijuana, what can you do to ensure that your employee rights are respected and that you are allowed to smoke without losing your job?
The first step is to be upfront about your marijuana usage. You may think that hiding it may be the best route toward keeping or getting that job, but it is comparable to lying in your resume. If your employer finds out that you have been hiding it, you can end up in more trouble than than you would if you had been upfront about your habits. Consequently, whether you decide to smoke marijuana while employed or have a habit of smoking it while undergoing a job interview, you have to be upfront about your habits and understand that it may slow down your job search.
The second step is to understand what employment protections are in place for marijuana consumers. If you do it for fun, you are typically out of luck. And in most states where you can use medical marijuana, you will be out of luck, as the Coats case shows.
But in Arizona, Connecticut, Rhode Island, Maine and Delaware, employees do have some protection. For example, Connecticut does not allow employers to fire or threaten employees solely because of their medical marijuana use, “unless required by federal law or to obtain federal funding.” And while you may think that caveat makes the entire section worthless, you have to remember that while marijuana is federally prohibited, there is no federal rule stating that employers must fire employees who smoke marijuana.
But remember: These laws do NOT state that employees have the right to smoke marijuana at work, and those who work with heavy machinery are an exception to these protections.
When marijuana is eventually legalized throughout the United States, you will undoubtedly have self-satisfied media types who declare that the fight for marijuana is over. But… that is far from the case. Those who wish to smoke pot will undoubtedly face reprisals from employers who are still convinced that cannabis is dangerous.
Until such policies change, those who smoke pot have to understand that they can lose their job for their recreational activities, and there is little that can be done about it at this point.