Though Alaska and Oregon voted last week to legalize marijuana, the workplace rules in those states surrounding cannabis will not be changing. Not one bit.

While the laws in these states make buying and possessing and using marijuana legal, they do not  mean that you can now go to your job while under the influence of marijuana. The new cannabis laws in both states likely will have little to no impact on your rights as an employee.

Both Alaska and Oregon laws expressly make this clear. Alaska Ballot Measure 2, Sec. 17.38.120(a) provides as follows:

Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.

Oregon Measure 91, Sec. 4(1) provides something similar:

Sections 3 to 70 of this Act may not be construed:

(1) To amend or affect in any way any state or federal law pertaining to employment matters.

This all means that employers that prohibit their employees from using or being under the influence of marijuana at work  and even those that test their employees for marijuana will be free to continue to do so. Employers also won’t be required to make exceptions for their employees who use medicinal or recreational marijuana as an accommodation for a disability under laws like the Americans with Disabilities Act (“ADA”).

Even in states where medical or recreational marijuana is legal, employers are free to perform drug tests on their employees. They are also free to insist on a drug-free work place.

Recent court decisions in Washington, Oregon, and California, among other states, have upheld the employer’s right to deny employment to cannabis users and to discipline or terminate employees for marijuana use, even if the employee is using medical marijuana under state law. Employers may not only test for impairment on the job; they also may test for marijuana use, even if that use occurred weeks prior and has zero impact on job performance. Colorado appears to be the same.

After Washington legalized cannabis, the city of Seattle notified its workers that it would maintain a drug-free workplace. The city justified this stance because it receives federal funding and, under federal law, marijuana is still illegal. Ultimately, Seattle does not want to put its federal funding at risk. Many employers, particularly big companies and governmental bodies in the public safety, transportation, and manufacturing industries, are doing the same.

Even residual amounts of marijuana in your system can be grounds for job termination if your employer takes a hardline stance with its drug policy. If you consume marijuana in your home in accordance with state law, you can still be fired if your employer maintains a drug-free workplace. In order to know your rights in the context of marijuana use, be sure to take a look at your employer’s HR policies. If you plan to keep your job, marijuana consumption may not be an option.

There are some silver linings here for employees. If you’re in a state where marijuana is legal, and your employer accommodates or decidedly ignores known alcoholics or prescription drug users (for example), there may be an argument to be made that the workplace isn’t actually zero tolerance on drugs and that marijuana use should be equally as accepted. Furthermore, many states have laws prohibiting job discrimination against those with sensory, mental, or physical disability. Perhaps in some states, a disabled qualifying cannabis patient can show in court that his or her employer was using medical cannabis as a front to discriminate against the disabled. For more on cannabis in the general workplace, check out Legal Cannabis Use Can Still Get You Fired and Employment Problems for Cannabis Users.And for more on what you as a cannabis business should be doing with respect to your own employees, check out Now That You Are A Real (Pot) Business: Employment Law Basics for Marijuana Businesses.

 

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Photo of Alison Malsbury Alison Malsbury

Alison primarily focuses on corporate and intellectual property transactions, working primarily with Harris Bricken’s cannabis, tech and entertainment clients. She has assisted clients with contracts, company formation, intellectual property protection, and regulatory compliance, and enjoys working with creative entrepreneurs at all stages of…

Alison primarily focuses on corporate and intellectual property transactions, working primarily with Harris Bricken’s cannabis, tech and entertainment clients. She has assisted clients with contracts, company formation, intellectual property protection, and regulatory compliance, and enjoys working with creative entrepreneurs at all stages of business development. Alison has a strong and growing practice representing celebrities on their cannabis endorsement deals and helping cosmetic and skin care companies navigate the complicated laws involving CBD.

Before joining Harris Bricken, Alison worked with the in-house legal team of one of the largest software companies in the world on their trademark and technology licensing issues.

Alison teaches Cannabis Law and Policy at Santa Clara University School of Law, where she graduated cum laude and was the technical editor for the Santa Clara Journal of International Law. During her time, she also received multiple awards in intellectual property, including the High Tech Excellence Award and the Witkin Award for Academic Excellence in Patents.

A Seattle native, Alison enjoys cycling, skiing, surfing, and just about any outdoor endeavor. She can often be found spending time with her rescued cat, Floyd, and her dog, Wiley.