SITUATION
Your practice is located in Colorado, Washington or another state where recreational and medical marijuana use is legal. But still you’re shocked to find three of your employees smoking pot at work. The employees recognize that they’ve been caught red-handed but each offers up a different explanation:
- Bud reveals that he’s addicted to marijuana;
- Herb explains that he uses medical marijuana to treat his cancer-related pain; and
- Mary Jane admits to being a recreational (rather than medical) user but can prove that she got the pot legally.
QUESTION
Which employee(s) can you fire for violating your practice’s zero tolerance workplace drug policy?
ANSWER
All three
RULE
Use of marijuana in the workplace is grounds for discipline up to and including termination.
EXPLANATION
There are legal limits on how far you can go to discipline employees for using marijuana, especially in states where marijuana use is legal. But none of these restrictions preclude employers from banning marijuana use at work and imposing discipline to enforce those policies. The best way to explain the rules is to go through each one of the employees in the scenario.
Bud, the Marijuana Addict
EEOC laws require employers to make accommodations for employees with disabilities. Addiction to drugs and alcohol is considered a disability under the law. But accommodations aren’t required if they’d impose undue hardship. And while the line between required accommodation and undue hardship is determined case-by-case, the clear consensus from court cases and EEOC guidelines is that permitting employees to use or be impaired while at work would create an unacceptable health and safety risk.
Herb, the Medical Marijuana User
The same disability analysis applies to Herb because cancer and most other illnesses, injuries and conditions for which marijuana is used as a medical treatment would constitute “disabilities” under the law. While tolerating medical marijuana use away from work may be a required accommodation (as long as the employee isn’t impaired while actually working), tolerating it at work would clearly be undue hardship.
Mary Jane, the Casual User of Legal Marijuana
Disability protections don’t apply to Mary Jane because she isn’t an addict and doesn’t smoke pot to treat a disability. She’s only a casual user. The fact that she obtained the marijuana legally won’t shield her from discipline for violating a zero tolerance policy banning drug use in the workplace.
PRACTICAL IMPACT
Using marijuana at work in violation of a clear HR policy is justifiable under neither disability discrimination nor marijuana legalization laws and thus subject to discipline up to termination.
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