Getting Fired For Smoking Weed After Work Hours
According to the termination practices of some corporations, you CAN be fired for smoking cannabis off-the-clock in a legal state. What?
Workers don’t have the right to the medicine they need. That’s the message that some state laws are sending, as more and more workers are getting fired for using legal cannabis.
Take the experience of one Massachusetts woman, who legally used cannabis during her off hours, but was nonetheless fired from her job as a hospital kitchen worker after her office drug tested her following an injury sustained at work.
The woman is suing the corporation that operates the hospital, but the case doesn’t revolve around the legality of cannabis use off-the-clock. Instead, it centers on whether the hospital had the right to forcibly drug test her nearly one week after her incident when there were no indications that her injury was the result of an impairment.
This kind of treatment is unjust, but this woman is not the first and she won’t be the last. Many workers across the nation have faced hostile workplaces that have used drug tests to facilitate terminations, even when the usage didn’t happen during work hours. And, because most cannabis laws are very new and full of holes, there don’t seem to be many protections for recreational (and in some cases even medical) cannabis users who want to partake in a legal activity while also remaining employed.
What Do the Courts Say About Being Fired for Weed?
For example, the California Supreme Court decided that even workers with physician-prescribed medical cannabis cards could still be fired for using it.
If you think that’s insane, you’re not alone. One justice, writing against the majority, opined that the ruling “gives employers permission to fire any employee who uses cannabis on a doctor’s recommendation, without requiring the employer to show that this medical use will in any way impair the employer’s business interests.”
In a different case, an Oregon television station fired a reporter after she tested positive for cannabis use (again, not on the job). Because cannabis is legal, the reporter couldn’t face criminal charges, but that didn’t stop the company from letting her go.
This is a ridiculous standard. After all, the idea of firing any worker who enjoyed a happy hour drink on their way home from the office would be met with scorn and derision. Such a scenario would be laughed out of a courtroom. Why does cannabis use not afford the same treatment?
How is Cannabis Different Than Alcohol in The Workplace?
In part, cannabis is treated differently from alcohol because of its biochemical makeup. Put another way: Drug tests for cannabis do not operate the same way that drug tests for alcohol do.
Alcohol tests can discover impairment at the time of the test, allowing employers to easily know whether or not a worker was using a mind-altering drug while on the job or operating a vehicle.
Because THC, one of the active ingredients in cannabis, stays in the system longer than alcohol, today’s tests cannot show whether or not someone is affected at the time of the test—only whether or not they’ve used cannabis at some point in the preceding days.
Clearly, this a problem. The issue forces society to balance the ability of someone to engage in a completely legal activity against the inability to test whether or not they’ve done so during work hours.
What Can We Do Differently?
A fair-minded strategy might be to forget cannabis testing altogether, and limit their firings to employees who cannot fulfill the functions of their jobs. That’s the track that some federal lawmakers are taking through a new proposal that would prevent the U.S. government from firing and not hiring workers who test positive for marijuana in states where it’s legal. The bill is being sold as a way to protect American veterans, who make up a large portion of the federal government’s labor force and are also more likely to use cannabis for medical purposes.
The bill enjoys bipartisan support. It’s sponsored by one Democrat and one Republican, both from states that have enacted medical marijuana laws, but still ban recreational usage.
While that’s a good step forward, it doesn’t solve the problem of cannabis’ semi-legality, which leads employers and users alike in the dark about just what constitutes legal behavior and puts the battle for rules in the hands of the courts.
As employment matters wind through the justice system, there have been disparate rulings. For example, Maine’s highest court ruled that an employer did not have to subsidize the cost of an employee’s use of medical marijuana because the drug is still illegal under the federal Controlled Substances Act. A New Jersey court, however, found the opposite and ordered that a township had to reimburse an injured city employee for costs of his medical cannabis.