We’ve seen this before, and we’ll see it again. Employees losing their job over marijuana use, even when that use is legal under state law. In Fired For Using Marijuana? It May Be Too Damn Bad, we warned that in many states with some form of legalized cannabis, employers are still permitted to enforce a drug-free work policy. In other words, that your weekend wind-down may involve a joint may no longer be cause for concern with (state) law enforcement, but it can still be a source of contention, or even grounds for firing, with your employer.

Mere hours into final implementation of I-502 in Washington state, as consumers were getting their first taste of legal, recreational marijuana, the first casualty of a drug-free workplace occurred. Mike Boyer, reportedly the first buyer of legal pot in Spokane, claims the publicity he received in connection with that status, led two of his three part-time employers to ask him to submit to a drug test. Boyer apparently does not dispute his employers’ right to make such a demand, but says “I was really unaware that this might be a big deal.”

In fact, pot use remains a big deal in Washington (and most other states with legalized marijuana and a drug-free workplace law), so long as your employer wants to make it a big deal. Court decisions in Washington, Oregon, Montana, California and others have upheld an employer’s right to decline to hire, discipline, or terminate an employee for marijuana use, even if the employee is a valid medical marijuana patient. If your employer cares enough to institute a written zero-tolerance policy, you had better abstain, or cross your fingers you don’t get tested.

Valid reasons exist for such policies — some lines of work are simply too dangerous, too sensitive, or expose the employer to liability, such that drug use can and should be “a big deal.” Mr. Boyer was employed by a security firm, whose HR manager did not shy away from reiterating its zero-tolerance position, saying “Our employees can’t be under the influence on the job.” But therein lies the rub — being “under the influence” versus simply testing positive. As we explained in a past post on DUID, a simple test for THC levels will not reveal whether a person has used marijuana very recently, and is likely impaired, or simply has residual THC in his system from the pot brownie he ate 10 days ago. Right now, most companies are only testing for the presence of THC, and are not distinguishing between workers who are truly impaired on the job, and those who partake responsibly on their own time.

Clearly, employer drug policies and drug testing have a long way to go. In the meantime, employers should be revising their policies to reflect the changing legality of marijuana (and making them known to their employees), and employees will either have to deal with the risk (or at least perhaps avoid the publicity that doomed Boyer), or seek out mellow employers.

For further reading, check out this superb Seattle Times piece, published in the wake of I-502 passage. You’ll notice that not much has changed on this issue in the intervening 20 months.