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Can Employers Enforce Policies Prohibiting Marijuana Use?

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With marijuana use now legal in so many states but still illegal on the federal level, there is bound to be some confusion as to whether employers can still enforce workplace drug policies that prohibit the use of marijuana. A recent federal appellate court decision has provided some clarity by ruling that, so long as the policy adheres to state law, employers may still prohibit marijuana use as a condition of employment.

In Carlson v. Charter Communications LLC, the U.S. Court of Appeals for the Ninth Circuit found that Charter was within its rights as an employer to fire Lance Carlson for marijuana use because he was in violation of the employee handbook. The panel reasoned that, although the Montana Marijuana Act legalized pot in the state, it did not restrict employers’ discretion on whether to prohibit its use by employees — a right employers maintain because marijuana is still illegal on the federal level, according to the court.

In other words, if a state law legalizing marijuana doesn’t prohibit employers from restricting or forbidding marijuana use by employees, employers may continue to prohibit its use through drug tests, and may even fire employees who violate the policy.

A word of warning: This is a rapidly changing area of law. Colorado, for instance, currently has no legislation that limits an employer’s ability to drug test employees for marijuana. If passed, however, the Marijuana Consumer Employment Discrimination Protection Bill would specifically forbid employers from firing an employee based on a positive drug test for marijuana except if the person “used, possessed, or was impaired by marijuana during the hours of employment.”

Meanwhile, on the federal level, Congressman Charlie Crist (D-FL) has introduced the Fairness in Federal Drug Testing Under State Laws Act, which would prohibit federal agencies from discriminating against employees for testing positive for marijuana on a drug test or simply for the fact that they use marijuana.

To stay current on both employer and employee rights regarding marijuana usage, send us a message or call us at (303) 894-8948 today.

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