Pot Promoters vs. Employers: The Battle Remains at the Federal Level

29 Apr, 2013 Bob Wilson


The trend is undeniable. 18 states have legalized marijuana for medical use, and 2, Washington and Colorado, now allow its use for recreational purposes. More states are considering some form of legislation that would relax or remove restrictions on the use of the drug. It would seem the proponents of legalizing pot are on a winning streak.

Yet, one looming battle remains for this group. Unless and until they prevail, employers and courts around the nation are in for one hell of a ride. That final battle is the Federal Government, which continues to classify marijuana as a Class I drug, addictive and illicit. Recent court cases reflect the confusion and challenge before employers as this battle plays out. 

A Colorado court has upheld the right of an employer to terminate an employee found to be using medical marijuana, citing federal laws against the substance. The Washington Supreme Court also has ruled that workers can be fired for using medical marijuana. And a federal appeals court last year ruled against a cancer survivor in Battle Creek, Mich., who was fired from his job with Wal-Mart Stores Inc. after failing a drug test by testing positive for marijuana. That employee said he needed the drug for an inoperable brain tumor.

I should not have to point out that if so called medical users (yes, I am a skeptic about many of those) have such a problem with the courts, then recreational users who lose their job by failing a drug test are in for a real surprise. The courts do not appear to be in a position to want to rule against standing federal law.

The people comprising the medicinal Mary Jane crowd in Colorado are basing their cases on a law there called the "Lawful Off-Duty Activities law", which is designed to protect the rights of cigarette smokers by preventing them from being fired for legal behavior off the clock. Their challenge, of course, is that only state law makes their activity legal. Last time I checked, federal law superseded state law, and that is the crux of their problem.

The Pot for Pain folks need to take their fight to Congress and the FDA, as those pesky federal laws will continue to wreak havoc with their weekend plans. I suspect they will eventually prevail, as the cultural and societal shift seems to be in their favor. 

In the meantime, it appears employers are going to be navigating a minefield of controversy, trying to establish policies that carefully balance between new state laws and established federal ones. After all, despite court opinions that are generally enforcing drug free policies, defending the position is not a cheap option. Agree with legalization or not, this current conflict will not end until federal law aligns with the new state dictums.

Then the real fun, balancing drug free policies with federally allowable drug use, begins.

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