First it was just for “medicinal” use. Now it’s expanding to “recreational” use. Either way it is causing headaches for employer in pro-marijuana states. 23 U.S. states have legalized medical marijuana, with Colorado and Washington voting to legalize recreational marijuana in 2012 for those 21 and older. Voters in Oregon, a state which allows medical marijuana use, rejected recreational use in 2012. You can see a list of these states at http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
The question is how do these statutes affect employers? Answer is it depends on the state. The Colorado law states that “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 work place or to affect the ability of employers have policies restricting the use of marijuana by employees.” The Washington statute does not mention using marijuana in the employment setting. Connecticut’s law bans employers from acting against workers who use medical marijuana off-duty.
Federal law prohibits marijuana use, whether medicinal or recreational. The Department of Transportation does not accept medical marijuana for medicinal use. Since marijuana is illegal under federal law, institutions that receive federal funds will still be subject to testing consistent with the federal Drug Free Workplace Act.
The handful of court decisions interpreting these laws have come down on the side of the employer. They can discipline, terminate, or not hire employees who test positive for marijuana, even if properly used under state law. However, it will be interesting to see how these laws are interpreted either by way of state regulations or court decisions. In a state like Connecticut, where you can’t fire somebody for non-workplace use, what if somebody smoked a ton of weed one evening, and they come to work fuzzyheaded, would an employer have the right to test them? Or suppose they smoked on the way to work or during a break on their “own” time? There are no definitive answers to these questions and there may not be for years.
