Legal Marijuana: Can You Fire An Employee For Testing Positive?

As of July, 2014, Colorado and Washington both passed state laws legalizing the sale and use of recreational marijuana. So, now that it is legal, the first instinct would be that it would eliminate employer drug testing, however this is not the case.

If anything, the legalization of marijuana in these two states has only further clouded the already cloudy language about legal pot smoking. Who can partake, when, where and the list continues. Many companies and employers in this country had drug test policies that range from almost non-existent to a zero-tolerance already in place at the time the law was passed.

So it begs the question: Now that it is legal in Colorado and Washington to buy, sell and use, can an employer still fire you if you test positive? In a word: Yes.

In order to understand that short answer, it is important to remember that there is a chain of command in our government structure. Regardless of political position, this is a reality. The federal government, specifically the Supreme Court, has the final say over any state issue if the case reaches the national level.

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Because marijuana is still illegal under federal law, if your employer fires you because you test positive for the drug in a state where it is legal, the federal government will side with your company.

Although almost half of the states have legalized the use of medical marijuana, the newly legal recreational use of the drug is starting to raise all sorts of questions. Broken down, the main issues are as follows:

Liability Concerns:

Companies and employers hold all the cards. Drug testing policies have long been a part of today’s society. The reasons why companies require a test at your date of hire and/or randomly throughout your time with them vary. Most of them are for liability reasons to protect themselves against lawsuits. Employees of the Federal Aviation Administration (FAA), for example, are hit with random drug tests. Imagine that lawsuit when evidence finds a pilot under the influence was the cause of a plane crash.

Federal vs. State:

Companies’ policies are being upheld because marijuana is still federally illegal. Compliance with company policy gets the final say. Even if the marijuana use is during off hours, there is no test to determine exactly when it was used, or if an individual is currently experiencing effects of the drug.

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Colorado’s “Lawful Off-Duty Activities” statute, which prevents employers from terminating employees for engaging in legal activities while not at work, was initially thought to be protection from termination from a positive drug test by residents. However, the Supreme Court recently overruled such thinking in a case involving a former DISH Network employee, fired for a positive drug test result.

Imprecise Drug Testing:

Many comparisons are being made to alcohol use while on the job, but with one significant distinction. Alcohol metabolizes and moves through the body much faster than marijuana. A positive drug test result could be because a person used the drug days ago the way it was intended – recreationally. There are tests in developmental stages designed to determine exactly when marijuana was used, but as of now, there are no such tests in circulation.

The Breathalyzer for alcohol has been in use for years! Because there are no tests for marijuana, employers are sticking to their in-place protocols and erring on the side of caution.

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As employers and employees continue to muddle through these fun new waters, something interesting started to happen. With the legalization of recreational marijuana, the demand for on-the-job drug tests has increased. More and more businesses are starting to require a drug test upon hiring, possibly because the legalization has put a focus on marijuana use.

The question has almost become, “how many people use marijuana?” Many people who have quietly used the drug for years are now being forced into the light because of the demand for increased screenings.

Will policies change in the years to come? However, for now, it seems as long as marijuana remains illegal federally, you can still be fired for your state-legal weekend use.


Rebecca Short is part of the legal team for her company and advises them on matters pertaining to current issues like possible marijuana legalization. Believing in a drug-free workforce, she also makes sure human resources has what they need to carry out employee testing. To faciliate this, she turns to Workflow Employer Services. You can learn more about Rebecca by visiting on Google+.

Categorized as Finance, Law

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