Recreational Marijuana - Just Because It’s Legal, That Doesn’t Mean It Can't Get You Fired

Judging from the talk filtering out of the highest offices of American law enforcement, one might conclude that smoking marijuana is no longer much of a threat to keeping one's job. This week, due to the widespread use of marijuana among hackers, the director of the Federal Bureau of Investigation said his agency may need to revisit its strict prohibition against hiring pot smokers if it wants to strengthen its cybersecurity capabilities.

Yet even as the FBI laments its limitations on hiring those who smoke marijuana, a host of corporate policies aimed at maintaining drug-free workplaces, a patchwork of state laws and remaining federal prohibitions on marijuana make smoking pot perilous when it comes to employment, labor experts say.

“There’s this misconception where people think, ‘It’s legal in my state, so I can’t get fired.’ None of that is true,” Kabrina Chang, an assistant professor of business law and ethics at Boston University, told International Business Times. While the law in some states allows anyone over the age of 18 to smoke marijuana, it does not provide any workplace protections, and state laws do not override corporate policies that prohibit drug use.

In Colorado, recreational marijuana use was legalized on Jan. 1, and medical use has been legal there since 2001. However, still unresolved is the question of what companies will do if their employees choose to partake in the now-legal pastime outside of the office.

“Companies are expressing a lot of interest in what to do with their policies,” Nathan Schacht, an attorney at Baker & Hostetler LLP’s Denver office, told IBTimes. The Colorado law explicitly states that employers have the flexibility to maintain a drug-free workplace, and many companies want to strike a fair balance with their employees.

“If someone smoked pot two weeks ago and it shows up in their system, employers want to be consistent with their policies, so most of the time they have to terminate them,” Schacht explained. “But there’s nothing out there yet that is helping them set certain standards in order to make decisions.”

In Colorado and Washington, where both recreational and medical use of marijuana is legal, federal law complicates the situation. Marijuana is considered a Schedule 1 drug, meaning it is not recognized as having any medical use and is subject to abuse. On the state level, recreational use may be permitted much like alcohol or tobacco.

But unlike alcohol or tobacco, which have defined limits under federal law and state law, marijuana intoxication symptoms are not as clear, nor is the drug testing as accurate, since THC can stay in a person’s system for weeks, compared with only hours for alcohol. Meanwhile, there aren’t any guidelines for companies that want to be fair to their employees while staying true to their corporate culture.

Schacht said an anticipated state Supreme Court decision regarding Brandon Coats, a quadriplegic medical marijuana patient from Colorado who was fired by Dish Network in 2010 for taking his medicine while off duty, may provide some clarity for Colorado companies. Until that happens, companies must come to terms with how they define themselves under the new law.

“It is very much a cultural issue,” said Ingrid Fredeen, an attorney and vice president of advisory services, at NAVEX Global, based in Oregon, referring to the apparent double standard regarding alcohol and marijuana use.

Some industries are more open to allowing their employees to use marijuana, either in their off-time or in some instances, if company policy permits it (such as an exception made for individuals with medical marijuana prescriptions) even at work. Tolerance is less likely at larger corporations.

“If a company had a drug-free workplace policy before, they probably haven’t changed it,” Schacht said.

That likelihood is borne out by drug-testing requests companies send out. Tim Thoelecke Jr., president of InOut Labs in Illinois, said most companies that do drug tests continue to test for the presence of marijuana. In fact, he said, “Employers are more concerned with marijuana. Most want to make sure to include it in their testing, especially if their employees have safety-sensitive roles. Many companies that did not test before are confused and a little afraid, and a lot are implementing testing.”

Labs can determine various levels of marijuana, but Thoelecke said most corporate policies consider “any detectable amount” of marijuana a positive result.

Andrew Shulman, CEO of Mobile Health in New York City, said much the same thing. “We find that most employers leave it in -- the price difference is minuscule -- and decide on a response appropriately,” he said.

A company’s position on this issue may have less to do with ethics or morality than legal liability, Schaht said. “What it really comes down to is analyzing the risk. You’re looking at it from a liability perspective on the part of the employer, both with terminating the employee and, if they let this employee go, what does that mean for future cases?”

“The biggest driver, in my mind, is safety,” Fredeen said. “Employers are expected to keep the workplace safe.” Drug use -- even legal drugs -- could undermine that goal, especially in industries such as transportation or construction work. She also pointed to a recent finding by the National Council on Compensation Insurance that highlighted medical marijuana as one of the top emerging workers’ comp issues to watch for in 2014.

But in some industries -- most notably tech -- marijuana may be part of workplace culture.

“You will absolutely find organizations that say, ‘We think it’s great. We think it boosts employee creativity.’ Those are organizations that are not your heavy manufacturing, high-risk jobs,” Fredeen said. At lower risk jobs, such as those in call centers and office jobs, “The worst you get there is a paper cut and a fall down the stairs,” she said.

While legal marijuana is gaining traction in both the legal and medical fields, it will take time for the change to be felt in the corporate world.

“I don’t see there being a great cultural shift in corporate polices saying, 'We welcome it and because we do, people will flock to them from a recruiting perspective'” Fredeen said. “I don’t think that’s where we’ll go with it. I think it will go like alcohol. It’s there but there are limits and the limits are very clear.”

And for now, those limits include the residual presence of THC (the psychoactive chemical in marijuana), which can be detected in urine samples up to two months after a person smokes marijuana.