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COLUMN-Legal pot and the employee: Frankel

Source: Reuters - Tue, 7 Jan 2014 00:02 GMT
Author: Reuters
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(The opinions expressed here are those of the Alison Frankel, a columnist for Reuters.)

By Alison Frankel

NEW YORK, Jan 6 (Reuters) - I don't want to harsh the mellow of all you Coloradoans enjoying your newly instituted right to use marijuana for recreational purposes, but if you smoke dope on your time off and later test positive in a workplace drug test, your employer can fire you, according to partners at five major employment law firms.

The same is true in all but a handful of other states that have legalized pot for medical purposes. Unless you work in Arizona, Delaware, Maine, Rhode Island, Illinois or Connecticut, you aren't protected for the authorized use of marijuana (and your protection even in some of those states isn't a sure thing). As long as federal law treats pot as an illegal drug, employers have strong arguments to counter state laws permitting its use.

State supreme courts in California, Oregon, Washington and Montana, as well as federal appellate courts in the 6th and 9th Circuits, have explicitly sided with employers that fired employees using marijuana for authorized medical purposes, according to Nancy Delogu of Littler Mendelson.

"Federal law pre-empts state law when they're in direct conflict," Delogu said.

So, even though many states, including Colorado, have statutes precluding employers from acting against employees who take part in legal activities outside of the workplace - like smoking a cigarette on your break, taking a drink on a Saturday night or attending a political rally after hours - that protection doesn't extend to using marijuana when state law bumps into the federal ban on pot.

GROUNDS FOR FIRING

A Colorado intermediate appeals court reached just that conclusion last April in a case involving a Dish Network employee named Brandon Coats, a quadriplegic who was authorized to use the drug medicinally before Colorado passed its broad pot legalization law.

Even though Coats claimed he only used marijuana lawfully, on his own time and in compliance with Colorado's restrictions on medicinal use, a divided appeals court held that medical marijuana usage is not a protected "lawful activity" because pot is federally prohibited. (Coats' counsel from The Evans Firm told the Denver Post that he is appealing the ruling to the Colorado Supreme Court.)

"That's the piece that employers need to make clear to employees - that you can be fired for using marijuana outside of work," said Danielle Urban of Fisher & Phillips, who has counseled Colorado businesses on the recreational usage law that took effect last week. (Urban said that the state appeals court was well aware that recreational use of marijuana was coming to Colorado when it issued the Coats ruling; the recreational use law was passed in November 2012, six months before the appellate decision on federal pre-emption.)

Even human resources executives don't always understand that authorized and off-hours pot smoking is grounds for firing in most states, said Delogu, who told me of her conversation with an HR executive in Montana who was surprised to find out that her husband, a medical marijuana user, could be fired despite complying with state pot laws.

For multistate employers, the patchwork of laws regulating marijuana use is a headache, according to all of the lawyers I spoke with. Most said they advise clients to adopt state-by-state policies, or at least to carve out from nationwide drug testing and enforcement policies those states with specific protection for medical marijuana users.

Austin Smith of Ogletree Deakins said that he counsels clients to refer specifically to the federal ban on marijuana in their drug policies. Michelle Silverman of Morgan, Lewis & Bockius told me she warns employers about their potential liability for firing pot-smoking employees in states that protect medical marijuana users.

"Where this continues to be an open question, I counsel some measure of caution," she said. "You're going to see litigation around the country on this issue.... No one knows exactly where it's going to erupt."

TEST CASE

Fritz Smith of Seyfarth Shaw said that he believes state laws permitting marijuana use are unconstitutional as long as pot is federally prohibited, but most clients aren't eager to mount constitutional confrontations. "It's a dilemma for employers: Who wants to be the test case?" Smith said. (Like all of the lawyers I spoke with, Smith and Silverman emphasized that certain employers, such as federal contractors and businesses involved with the Department of Transportation, must comply with federal zero-tolerance drug standards.)

The two Colorado lawyers I spoke with, Urban of Fisher & Phillips and Smith of Ogletree, said the new law has already raised some intriguing questions for their clients. Unlike alcohol, marijuana shows up in drug testing for weeks after it is used. Smith said that he's talked to employers who are worried that legalization is going to bring a rash of positive drug tests.

"It's an interesting battle - how strict are you going to be?" he said.

Smith and Urban both predicted that to avoid losing workers, Colorado employers may have to come up with tests for impairment rather than simply usage, but right now there's no precise and inexpensive way to run such tests.

In the meantime, Urban said, even employers that wouldn't mind if employees used pot on their own time are reluctant to come out and say they'll tolerate low levels of marijuana in drug tests. Among other concerns, employers could face liability if they knowingly permit marijuana users to work. If he had to choose between defending an employer for firing an employee who tested positive for drugs and defending that same company from liability to a customer injured by the employee, said Smith, "I would defend the wrongful discharge any day." (Reporting by Alison Frankel; Editing by Ted Botha)

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