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Easing of Marijuana Laws Doesn’t Have to Blunt Your No-Tolerance Company Policy

by on
in HR Soapbox

In just a few short years, it seems America's "just say no" message about marijuana use has turned into "just say when."

In a major turnaround from past decades, a majority of Americans now support legalizing marijuana. According to a CNN new poll, 55% of people questioned nationally say marijuana should be made legal, up from 16% in 1987, 34% in 2002, and 43% just two years ago. Even President Obama has declared that he doesn't think pot "is more dangerous than alcohol" and instead views it "as a bad habit and a vice ... not very different from the cigarettes that I smoked.” (This does seem to contradict his own administration's message.)

States are leading the way on the softening of laws. In Colorado, as my colleage John Wilcox wrote, the New Year came in not with a bang but with a bong. On Jan. 1, Colorado became the first state to allow the public sale of marijuana. Residents of Washington have been permitted to light up legally since late 2012. Alaska, Oregon, California and as many as five more states are expected to legalize personal use of pot within two years.

But here's an important point: For employers (even in those pro-pot states), this new legality trend doesn’t have to alter your policies. You can still ban marijuana use at work, discipline employees who show up under the influence and punish (or dismiss) employees who fail drug tests.

The legal precedent comes from states in which it is legal to use marijuana for medical purposes. Courts have consistently upheld the right of employers to fire at-will employees who use marijuana if it interferes with job performance or use it at work or during work hours.

The Colorado law that legalized medical use of marijuana specifically states “Nothing in this (law) shall require any employer to accommodate (marijuana’s) use … or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Employers can still enforce zero-tolerance testing policies against marijuana use because smoking pot is still illegal under federal law.

Advice: With this softening of drug laws in many regions, now is a good time to clarify your organization’s policies with employees. Leading up to Jan. 1, many Colorado employers sent out reminders that put employees on notice about the difference between company policy and state law.


ONLINE RESOURCE: For advice on preventing and detecting drug use by your workforce and drafting a company policy, download our The HR Specialist white paper, Drugs in the Workplace, at www.theHRSpecialist.com/drugs. It includes a sample policy that you can adapt in your workplace.


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{ 2 comments“ read them below or add one }

Netizen_James January 29, 2014 at 10:43 am

If someone’s using cannabis medicinally, they should not be able to be terminated for failing a drug test. Any more than someone who has been prescribed oxycodone for pain management should be fired for failing the drug test. Such a termination would be a violation of the civil rights of the employee. It should never be a terminable offence to follow your doctor’s recommendations.



Jayelle Farmer January 24, 2014 at 3:13 pm

>”The Colorado law that legalized medical use of marijuana specifically states “Nothing in this (law) shall require any employer to accommodate (marijuana’s) use … or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

They should have added “in the workplace” into A64. To fire someone “at-will” for an an employee failing a drug test because of their use of marijuana away from the workplace ought to be a civil rights issue and not an employment issue.

Marijuana can be detected in the body for up to three weeks and to tie off-site marijuana use in with a person’s employment is just another form of prohibition. It sends the message that if a person uses marijuana then they ought not be allowed to have gainful employment.

I sincerely hope that in time this issue will change and that people who use marijuana – either medically or recreationally – away from the workplace will not fall victim to the possibility of this unjust employer privilege that is patently against the freedom and civil rights of the individual employee.


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