Marijuana May Be Less Legal Than You Think…To Your Boss

Tuesday, May 21, 2019 | 7:44 pm

In the end, it is correct to say marijuana is legal in some places, some of the time, but not in all the places all of the time.

Jim Potts, chief executive officer, Potts & Associates, has seen the confusion and written a white paper, Legalized Marijuana: Privacy Rights v. Workplace Rights, with the goal of clearing the air on some of the issues.

His firm writes employee handbooks for companies and trains their employees on, among other things, the complexities of marijuana law, which he discussed with Pasadena Now’s David Cross.

“The confusion is that employees think that, because it has been passed as a law in California regarding medicinal use of marijuana, and the recreational use of marijuana, that it’s okay to use it. What they don’t understand is that it is still a federally controlled substance. That is the problem.”

As someone working in the human resources space, Potts wants you to know that the workplace is where some real problems lie in wait.

He noted that, in 1996, the California Supreme Court and the Supreme Court of the United States both found that California employers did not have to honor the legalized, medical use of marijuana.

What does that mean to the weed-inhaling, average Joe Lunch Pail?

“That means that if an employee tests positive for marijuana in their system, the employer has every right to terminate them,” said Potts.

The one proviso is that the employer must have a zero tolerance policy regarding any controlled substance.

Employees who clean their blood for 30 days to pass an initial pre-employment screening still run a risk of termination, should they renew their pleasure, or medication, as the case may be.

“If they have either a work-related accident or, in fact, they appear to be impaired,” said Potts, “ and the employer has a reasonable suspicion that the person might be on a controlled substance or alcohol then, according to the policy that they have in place, they can send the person out to be tested. If the test comes back positive, then they have a right to terminate the employee.”

And, Potts noted further, there is no pot of gold to be had at the end of the litigation rainbow for complainant employees.

The test case hit the Colorado Court of Appeals two years ago, he explained. The state was the first to legalize cannabis for recreational use. A plaintiff who used cannabis for medicinal purposes was fired and subsequently sued the employer under the new state law.

“The Colorado Court of Appeals turns around and says he was out of luck,” said Potts. “Why? Because the employer has a policy. Zero tolerance, regardless of the use of any controlled substance, including marijuana.”

Of course, even if you have less rights when you cross an employer’s threshold than you do as a citizen in the street, there is dissonance where business policies run counter to changes in the legal and social landscapes.

“I will tell you,” said Potts, “we have clients that are not confused, but are up in the air about the issue. Why? They’re getting a lot of people applying for jobs with marijuana in their system and therefore are having a problem hiring because these people are out there smoking.”

The upshot, he said, is that some employers are shrugging off marijuana usage among their employees. “They’re ignoring it and saying, ‘You know what? It’s only marijuana. We’re not going to be concerned about it.’”

Potts’ White Paper, Legalized Marijuana: Privacy Rights v. Workplace Rights can be read in its unabridged form by clicking here.







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