Legal recreational cannabis sales began in Colorado on January 1, 2014. Under Amendment 64, it’s now legal for the state’s adults to purchase, possess and use the drug. However, this does not mean that employers have to resign themselves to tolerating “high” workers. In fact, state law gives employers the right to fire (or refuse to hire) those who choose to use the now legal substance. They have complete control of their workplace drug policy including the ability to prohibit the use of marijuana by their employees both on and off the clock.
This provision of the law is important because drug tests, often administered as part of the new hire pre-employment screening process and re-administered periodically to employees, cannot determine when marijuana was ingested. The drug’s metabolites remain in the body for weeks, making it impossible for employers to ascertain whether positive test results are the result of on- or off-duty marijuana use. If the company in question has a strict no-drug policy, it really doesn’t matter.
A recent court case affirmed Colorado employers’ rights to prohibit their employees’ use of marijuana while off the clock—even in the case of a medical prescription. When an employee of the satellite-TV company Dish was fired for testing positive for marijuana in a random drug test, he sued the organization, alleging his use was restricted to off-duty and he was never under the influence while at work. The Colorado Court of Appeals upheld the firing.
While initiative 502, the law legalizing marijuana use in Washington State, does not contain specific language stating employers’ rights to fire workers for marijuana use, court cases have already proven that they have the right to test job applicants and current employees for the substance as well as enforce a drug-free workplace.
Why do employers care? Use of marijuana in the workplace—or the performance of duties by someone who has previously ingested the drug off the clock—can have an adverse effect on staff productivity and safety. The drug is known to produce short-term memory problems, and decrease concentration and reaction time. Additionally, it may impair thinking and the ability to perform complex tasks. These effects can last from two to six hours.
If you are running a business in Colorado or Washington, your employees may be confused about the new laws and mistakenly believe their drug use can have no bearing on their employment. If your organization has a workplace drug policy that prohibits the use of marijuana, it’s your responsibility to make sure that policy is clearly communicated to your employees. For example, drug-free workplace policy documents should be reworded to specifically express your rules regarding marijuana use.