Marijuana Smokers Can Still Be Fired For Failing Drug Tests

Although recreational marijuana use has been legalized in Colorado some workers are finding out the hard way that they can still be fired for failing drug tests.

Our Los Angeles marijuana lawyers note that decriminalization or even legalization of marijuana by the state government does not always mean employers will follow the government’s lead.

Unfortunately, there have been many stories involving long time medicinal marijuana patients who also happen to be loyal employees who are fired for failing a drug test due to marijuana use.

In one example, regarding a customer service representative, the individual was a 30 year old quadriplegic who had been using a wheel chair for 14 years. His condition was caused by a tragic car accident and medicinal marijuana was able to control his resulting muscle spasms, unlike other pharmaceuticals.

Some courts have upheld the employer’s ability to fire an employee for using marijuana even when the worker is not using marijuana in violation of the state’s criminal laws. This decision came down despite the fact that some states also have Lawful Off-Duty Activities Statues.

These laws exist to prevent employers from firing an employee for being involved in illegal activities during non-work hours. Some court’s have held that these laws don’t apply to marijuana. This area of the law is under constant scrutiny and differs from jurisdiction to jurisdiction so it is best to consult with an attorney.

The Supreme Court of Colorado announced its intention to review a case with facts similar to those discussed above but it likely won’t make a decision until late this summer or during the fall.

The recent law in Colorado legalized marijuana but simultaneously promised employers that they still have the right to drug test their employees and fire them if they test positive. This sort of strict enforcement brings another problem with marijuana testing out. Obviously, at the very least, an employee should only be punished for current use and not past use but is that even sensible when the state has legalized recreational use of the substance?

Mainly, an individual can test positive in a drug test weeks after their last use of the drug. This means that an employee could be punished for activity they took part in prior to being hired that was legal – that’s a remarkable stance by the legislator.

Employers have fell into a routine of testing employees and looking for drugs, including marijuana use. This paradigm will be hard to alter since it has been the way employers operate for decades.

Employers may have a right to determine whether someone was impaired while being at work but a urine test for marijuana use will show positive results for weeks and is not an effective way to test present impairment. Unfortunately, the most common form of employer testing is via a urine test.

It remains to be seen how this issue will pan out, however, as society grows more accepting of marijuana use one would hope employers follow suit.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.
More Blog Entries:

Marijuana DUI an Increasing Threat Amid Legalization Efforts, January 1, 2014, Los Angeles Marijuana Lawyer Blog
Live Oak ban on marijuana upheld by Appeals Court, December 31, 2013, Los Angeles Marijuana Lawyer Blog
Additional Resources:

Brandon Coats v Dish Network, 2013 COA 62 (2013).