Pot’s legal, but I got fired for using it anyway. Can I sue?

Question:

We legalized pot in this state in February, so can you tell me how I got fired for THC on my drug test last week?
I smoke in my house and on my own time and it’s none of my employer’s business.
My buddies tell me I should sue my employer for violating my rights. Can I?

Answer:

Although we legalized recreational marijuana use in Alaska, you probably don’t have a winnable lawsuit, particularly if your organization has a zero-tolerance policy regarding drug use.

In June, the Colorado Supreme Court unanimously ruled that an employer’s zero-tolerance drug policy allows employers to fire individuals who fail company-sponsored drug tests. In the Colorado case, an employee made quadriplegic by a car accident used marijuana to control leg spasms.

Although the employee insisted he never used marijuana while at work, the employer fired him for testing positive. The employee argued he had protection under Colorado’s lawful activities statute. The Court noted that because marijuana is illegal under federal law, it couldn’t be considered a “lawful activity” under Colorado’s lawful activities statute.

Further, although many state medical marijuana laws create an affirmative defense against criminal prosecution for medically used marijuana, they do not give patients an affirmative right to use marijuana, which would protect an employee with a legitimate need from being fired.

The Colorado ruling is the latest in a series of national decisions denying job protection to state-sanctioned medical marijuana users who medicate off-duty, and by extrapolation, to recreational marijuana users. Colorado’s law additionally legalized marijuana for recreational use, but allows employers to prohibit marijuana use by their employees.

If Alaska courts rule similarly to Colorado’s Supreme Court, your employer’s policy likely trumps state laws allowing recreational marijuana use. While your buddies correctly believe employees can take their employers to court when employer policies violate employee rights under state law, they’re forgetting federal law. Federal law considers marijuana use illegal and defines marijuana as a Schedule I drug, with no acceptable medical use. The federal Controlled Substance Act pre-empts any provision of state law that conflicts with federal law.

Where does this leave you as an employee and your employer? Under Alaska law, you can recreationally use a limited amount of marijuana in your own home. If your employer has a zero-tolerance drug policy, your private use can result in your being fired.

Meanwhile, some employers now omit THC from pre-employment drug screens and have modified their drug policies to allow exceptions for legal drug use. A case can be made that an employee’s occasional off-the-clock, recreational marijuana use doesn’t impact on-the-job performance.

Other employers hesitate to change their existing policies, fearing that any loosening of well-established polices may impact workplace safety. We’re urging our clients to review their policies, before they lose long-term, high-performing employees whose private marijuana use shows up in random or scheduled drug testing.

© Dr. Lynne Curry is author of ”Beating the Workplace Bully” and ”Solutions” as well as owner of the management/HR consulting/training firm The Growth Company Inc. Follow her on Twitter @lynnecury10 or at www.bullywhisperer.com.

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