As cannabis acceptance grows state by state, so do employers’ uncertainty about what is legal and what is not.
January 2020 marks six years of adult-use marijuana legalization in Colorado. And though the state was an outlier on this issue in 2014, many other states have now adopted similar approaches to both medicinal and recreational uses of cannabis. When 2020 dawns, adult-use marijuana legalization will expand from the current 11 states to also include Illinois and Michigan, and later in the year legislation may be put to the ballot in other states such as Florida, New Jersey and Arizona.
With this sea change, employers across the nation are increasingly questioning how these laws and public sentiment on cannabis use will affect their workplaces – specifically their ability to prevent employees from using marijuana while off the clock.
Employers’ confusion on the issue is understandable given the patchwork of different state laws affecting cannabis use in the workplace. The way in which marijuana use is tested — which may be hours or days after consumption — also contributes to the incertitude employers might feel about disciplining or terminating employees for use of marijuana.
Nowhere is this confusion more evident than in a comparison of the regulatory differences between longtime adult-use states, such as Colorado, and other states with newly formed workplace laws involving legal marijuana use.
In Colorado, both employment statutes and case law affect the reality of Colorado employers’ workplace rules. For example, Colorado’s C.R.S. section 24-34-402.5, known as the “Lawful Off-Duty Activities Statute”, plainly states that employers are prohibited from firing workers who engage “in any lawful activity off the premises of the employer during nonworking hours.”
It may seem that this statute might provide protection for workers who lawfully use cannabis off duty under Colorado law. But any employee who believes they have the absolute right to use cannabis — even on their own time — and not be subject to discipline or termination should give heed to a Colorado Supreme Court decision handed down in 2015.
In a unanimous decision by Justice Allison H. Eid, the Colorado Supreme Court ruled that Colorado employers can lawfully terminate employment for employees legally using marijuana under Colorado law — including medical marijuana — during off-duty hours. In the case of Coats v. Dish Network, the state’s high court agreed with a lower court decision, ruling that the Englewood-based satellite TV provider was within its rights in firing Brandon Coats, a quadriplegic employee who had been using medically prescribed marijuana under Colorado’s medicinal use law. Although there was no indication that Coats was impaired or under the influence of marijuana at work, Coats was fired due to a random drug test that revealed the presence of THC.
Coates argued that Colorado’s lawful off-duty activities statute made his termination illegal because his use of medical marijuana was legal under Colorado law.
But Colorado’s Supreme Court ruled otherwise, finding that because marijuana remains illegal at the federal level–due to its longstanding Schedule 1 DEA classification–Coates was not “lawfully” using it. Therefore, the Court said, the wheelchair-bound parapalegic telephone customer service rep with no job performance problems was acting unlawfully and could be legally terminated.
This schism between state and federal laws on marijuana remains entrenched in U.S. society. And it’s not just employment issues being affected. The same disconnect between laws and policies have far-reaching effects that extend to housing, banking, property issues and more.
Even today, with marijuana legalization growing literally state by state, its effect remains steadfast in terms of employers’ rights to control their companies with drug-free workplace programs and zero-tolerance policies.
But in some of the states that are expanding the legality of marijuana use, the legislation is specifically addressing marijuana use and the workplace. For example, in one of the most recent states to legalize cannabis — Illinois — the legislation contains provisions regarding marijuana use and the workplace that could protect both employers and, to some degree, employees.
In Illinois, lawmakers have drafted provisions that give employers the right to enforce “reasonable” zero-tolerance workplace policies. Illinois’ Cannabis Regulation and Tax Act allows employers to discipline and even terminate employees as long as their workplace policies are applied in a nondiscriminatory way. As the Colorado Supreme Court held in the Coates case, the Illinois law similarly appears to allow an employer with a zero-tolerance drug free workplace policy to terminate an employee based upon the presence of THC in the employee’s system, even if the employee is not impaired at work.
Still, the newly formed rules in that state also give employees some degree of protection or at least clarity around being disciplined or terminated for being impaired at work. The Illinois law defines when an employer can have a “good faith” belief that an employee is impaired and lays out a number of observable symptoms of impairment, such as symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery, that should be considered by an employer before it can act.
And the law affords employees the right to contest an employer’s accusations concerning impairment.
Given these new provisions, companies with employees in Illinois should create and make known written policies regarding on-the-job rules, and supervisors must be trained on procedures to recognize the new law’s specifically-defined symptomatic expressions of marijuana use.
Illinois is not alone in grappling with the employment law complexities presented by the rising acceptance and use of marijuana. For example, the new year will also bring new workplace regulations that will protect those seeking jobs in Nevada. Its Assembly Bill 132, which also takes effect Jan. 1, prohibits employers from denying employment to anyone who tests positive for marijuana use. (There are some exceptions for safety-sensitive jobs.)
And in New York City, a similar law will go into effect Jan. 1 and completely prohibit testing for marijuana during the pre-employment phase.
As 2019 draws to a close, there’s little indication to suggest that marijuana acceptance and legalization won’t continue to grow nationwide. What is clear is that employers will need to continue balancing their workplace policies with a talent pool that is increasingly using marijuana medically and recreationally.
Christine (Chris) Lamb leads the employment practice at Fortis Law Partners where she focuses on counseling companies and executives on human resources and personnel issues and defending companies in employment lawsuits. Chris has a quarter century of experience representing a wide variety of companies ranging from start-up businesses to Fortune 100 companies. Chris has represented clients in matters before the Equal Employment Opportunity Commission (EEOC), the United States Department of Labor, Colorado Wage & Hour Division, United States Occupational Safety & Health Administration (OSHA), Office of Federal Contract Compliance Programs (OFCCP), and the Colorado Department of Labor & Employment (CDLE). She also provides advice and counseling on personnel policies and employee manuals, employment contracts, executive compensation, non-compete and trade secret agreements, and harassment investigations. For more information, contact [email protected].
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