Medical Marijuana Still a Hazy Area for Workers

U.S. workplace law is still in a hazy area when it comes to marijuana. More than half of the states have approved it for medical use, decriminalized it, or legalized it completely. Everywhere, however, it remains on the Schedule I list of controlled substances. Possession and use of marijuana—even when prescribed by a licensed physician—is illegal under U.S. federal law.

The Colorado Supreme Court recently ruled that a company was legally able to fire a worker who used state-licensed medical marijuana during non-working hours. In their opinion, “lawful” refers to activities that are lawful under both state and federal law. Medical marijuana is not legal under federal law; therefore the company was not acting in an unfair or discriminatory way.

In that case, the plaintiff was a quadriplegic medical marijuana patient who was fired for using the drug while at home and off-duty. He had never been suspected of or been accused of being under the influence while at work. However, drug testing revealed an unknown amount of THC (the active psychotropic compound in marijuana) in his system. THC can remain detectable for days or, in some cases, weeks after ingestion. For this offense, his position was terminated.

This blog has previously addressed the issue of medical marijuana and suggested that employers should relax and treat it like other prescription drugs. Its inclusion on Schedule I, however, makes it a bit of a different beast. This case involved medical marijuana, which is legal in a number of states. In Colorado, recreational marijuana is also legal under state law. Does that mean that workers can be fired for indulging off hours? Yes, it most certainly does.

In Gonzales v. Raich, 545 U.S. 1 (2005), the United States Supreme Court ruled 6-3 that federal laws prohibiting marijuana trump state laws legalizing it. Senators Cory Booker, Kristen Gillibrand, and Rand Paul have recently sponsored a bipartisan federal medical marijuana bill that may or may not go anywhere. There is some hope that federal laws will someday mirror state laws and employers will have clearer guidelines to follow. In the meanwhile, both employers and employees should be aware of this precedent and make the rules for their workplaces known in advance.