Yes, Colorado and Washington state have legalized marijuana for recreational use, and other states now permit medical marijuana.
But if you’re tempted to partake of some pot on a vacation out West, just remember, if you test positive in your workplace back in Mississippi, you’ll likely lose your job.
Susan Fahey Desmond, a shareholder in the Jackson Lewis law firm in New Orleans, is licensed to practice in Mississippi, Louisiana and Colorado. She represents management exclusively in workplace law and related litigation and frequently makes presentations about marijuana use in the workplace.
Desmond said after some states legalized marijuana for medicinal purposes, a number of cases addressed whether an employer in those states was required to accommodate the use despite the fact that marijuana is illegal under federal law.
“The courts addressing this issue have uniformly held that the ADA defines illegal drugs by reference to the Controlled Substances Act, a federal law. Under this Act, marijuana is a schedule I drug and, therefore, if an employee is currently using marijuana — even if being used for medicinal purposes authorized under state law —the ADA does not provide coverage to the employee as she/he is a current user of illegal drugs,” she said.
As for recreational use of marijuana authorized under state law, and an employer’s ability to regulate an employee’s use, Desmond compares it to alcohol use.
“Alcohol is a legal drug and at least according to states such as Colorado so is marijuana. Yet, an employer always has the ability to regulate an employee who is under the influence of any drug — alcohol or even prescription drugs — if that drug impairs that individual’s ability to perform his or her job or poses a direct threat to the safety of the employee or others. Many employers have a ‘zero tolerance’ in this respect,” she said.
Desmond points out in her presentations on alcohol and drug abuse in the workplace that each year, alcohol and drug abuse costs American businesses approximately $100 billion in lost productivity.
Desmond said a normal blood test can detect marijuana can stay in the user’s system for up to two to three weeks. If an employer uses hair samples to conduct a drug test, the drug can be detected much longer.
So if an employer didn’t detect an employee being under the influence on the job, a random drug test a week later could. “The positive test under a well written drug policy can be a sufficient basis for termination even in this respect,” she said.
So if you have already bought your plane ticket for a Rocky Mountain High vacation, should you keep it to yourself at work? Desmond said your boss probably has other things to worry about.
“I find that most of my clients have enough on their hands trying to control on the duty conduct and would rather not delve into their employees’ private lives,” she said.
“Employers are really only concerned when off duty conduct bleeds over into the workplace. This crossover can occur due to use of a substance off the job that stays in the system while the employee is on the job or when an employee is arrested that results in absenteeism or reputational harm to the company.”
Just keep in mind that supporting marijuana tourism could cost your job back home if you flunk a drug test.
“The employer has the same rights even in Colorado.” Desmond said.
“Despite the state’s legalization of recreational use, Colorado has published many articles warning its citizens that employers still can enforce its drug/alcohol policies and discipline accordingly. “
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