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Since marijuana being legalized in NY is the hot topic around me now, I had a question for you HR people.
If marijuana is legal, if it is shown as a positive on a drug test could I be fired for that or not offered a job because of it? Considering that once legalized, it'll be in the same boat as alcohol, I don't think it would be.
You can be fired for showing up drunk to work and alcohol is legal. And I can not hire you because I don't like the color of your socks. I don't see how it would be illegal.
You can be fired for showing up drunk to work and alcohol is legal. And I can not hire you because I don't like the color of your socks. I don't see how it would be illegal.
I'm not talking about coming in to work drunk or high. I'm talking about it just being in your system. Alcohol doesn't stay in as long so if that's in your system it's almost cut and dry that you've had some very recent. THC can stay in your system for a long while though.
So let's say I smoke today, and then 3 weeks from now you drug test me. The THC will show on my drug screen. Will that be a fireable offense even though it's on the same level as if I had a few beers tonight instead of smoking a joint?
Also, I guess not hiring someone for that would be easy because like you said, you can not hire someone for any reason.
Legal or illegal a company could still deny you employment because of drug use. its up to the company and their policy. I would think because of insurance reasons things would still be as they are today with pre employment tests anyway.
It's a question of state law and federal law conflicting
Some companies will use the excuse that it is still illegal federally to terminate your employment, or not hire you. If they are federal government subsidized (like a hospital, or school system) they will terminate you, or not hire you, for fear of losing their federal funding.
Many insurance companies give companies a discount if they drug test, so there is a financial incentive to do so.
If employers were really concerned about safety, which they often claim to be, they would use competency testing not drug testing. Sometimes, especially with marijuana use, it's more about punishing an alternative lifestyle than combating the evils of drug use.
Bottom line: Until the feds change their stance on the existing drug laws, state law offers no protection from federal penalties.
Most of the states that have legalized marijuana at some level do not have any provisions in their laws that address any employment protections, even if you are using it for medical purposes.
So far the courts have sided with employers and upheld firings.
Last edited by Beaconowner; 12-16-2013 at 11:38 AM..
Reason: double word
I believe most protected classes are federal. Yes you can be protected because of health issues and medical marijuana has been proven and shown to be helpful for these things. The problem is however that even though for example cali or oregon may say its okay, Federal laws which would protect you from being fired for medical reasons still view pot as being illegal. I think similar things have been challenged with police officers in these states and I believe its been rules even if they have a med card they still can't partake. Now obviously police is soemthing different in that its government and not a private company but I would guess yournot protected
If your job involves driving or operating machinery they can fire you but usually there is notice in your employee handbook or they have you sign a statement that you understand the policy. If you must use MJ stick to office jobs.
Since marijuana being legalized in NY is the hot topic around me now, I had a question for you HR people.
If marijuana is legal, if it is shown as a positive on a drug test could I be fired for that or not offered a job because of it? Considering that once legalized, it'll be in the same boat as alcohol, I don't think it would be.
Disclaimer: I do not partake in the activity.
There is legal precedent being set right now on this very topic. I just read this article a couple days ago and found it to be very interesting.
It appears that they are typically siding with employers. If it is against company policy to use drugs then you are violating a company policy.
Edit: Did not realize the article was behind a user site.
Here is what I found most interesting.
Quote:
So far, the courts have generally been siding with employers. For instance, the Sixth Circuit Court of Appeals upheld Walmart’s firing of an employee in Michigan after he tested positive for marijuana following a work-related injury. The employee had been using medical marijuana to alleviate his suffering from sinus cancer and a brain tumor, had a state registration card for this purpose and never reported to work under the influence or used medical marijuana in the workplace. Similarly, the Washington Supreme Court held that Teletech Customer Care Management’s termination of an employee following a failed drug test was lawful because the employer had no duty to accommodate a medical marijuana user, even when the worker did not hold a safety-sensitive position.
Earlier this year, the Colorado Court of Appeals addressed Dish Network’s firing of a quadriplegic employee after he tested positive for marijuana as the result of a drug test, even though he used marijuana off-duty and never worked under the influence. The employee claimed that Dish’s actions violated the Colorado’s lawful off-duty activities statute. The court determined that for an activity to be “lawful” under the state statute, the activity has to be lawful under both state and federal law. Since marijuana is not lawful under federal law, the court denied the employee’s claim.
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Originally Posted by skinnayyy
I'm not talking about coming in to work drunk or high. I'm talking about it just being in your system. Alcohol doesn't stay in as long so if that's in your system it's almost cut and dry that you've had some very recent. THC can stay in your system for a long while though.
So let's say I smoke today, and then 3 weeks from now you drug test me. The THC will show on my drug screen. Will that be a fireable offense even though it's on the same level as if I had a few beers tonight instead of smoking a joint?
Also, I guess not hiring someone for that would be easy because like you said, you can not hire someone for any reason.
Despite it being legal here in WA now, our employer still bans it and for those subject to drug testing, it is still grounds for not hiring or dismissal. Even if the federal law is changed, impairment of those doing work that is considered dangerous (such as electricians) will probably always be subject to testing and resulting action.
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It's a question of state law and federal law conflicting
