Fisher & Phillips partner, Danielle Urban, was quoted in an opinion piece by Alison Frankel on Reuters.com.
“I don’t want to harsh the mellow of all you Coloradoans enjoying your newly instituted right to use marijuana for recreational purposes, but if you smoke dope on your time off and later test positive in a workplace drug test, your employer can fire you, according to partners at five major employment law firms. The same is true in all but a handful of other states that have legalized pot for medical purposes. Unless you work in Arizona, Delaware, Maine, Rhode Island, Illinois or Connecticut, you aren’t protected for the authorized use of marijuana (and your protection even in some of those states isn’t a sure thing). As long as federal law treats pot as an illegal drug, employers have strong arguments to counter state laws permitting its use.
State supreme courts in California, Oregon, Washington and Montana, as well as federal appellate courts in the 6th and 9th Circuits, have explicitly sided with employers that fired employees using marijuana for authorized medical purposes, according to Nancy Delogu ofLittler Mendelson. “Federal law pre-empts state law when they’re in direct conflict,” Delogu said. So, even though many states, including Colorado, have statutes precluding employers from acting against employees who take part in legal activities outside of the workplace – like smoking a cigarette on your break, taking a drink on a Saturday night or attending a political rally after hours – that protection doesn’t extend to using marijuana when state law bumps into the federal ban on pot.”
