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Rising Smoke: Initiating Workplace Policies for Marijuana Use

By Ashley Kaplan, Esq. on 5/14/2014

In states such as Colorado and Washington where marijuana use is now legal, smoke is rising around the issue of employee consumption.


Employers are grappling with how to handle employees who choose to use marijuana.

Just because marijuana is legal does not give employees the freedom to light up whenever they please. Twenty out of the 50 states permit the use of medical marijuana, but as with alcohol, using the substance while on the clock could result in termination – depending on company policy. As of now, employers can decide whether to promote a drug-free workplace even in states where pot has been legalized.

One option is to only screen for on-the-job impairment rather than the presence of marijuana in the system, but such a test has yet to be developed for workplace screenings. This causes quite the predicament in states where marijuana is legal for either medical or recreational use.

Marijuana stays in the system for weeks, so those who are subject to random on-the-job tests or pre-employment screenings will test positive even if they were using it on their personal time and not impaired at work or when tested.

Knowing this, employers may choose to use a positive test as a catalyst for a conversation with the employee or applicant, rather than jumping to immediate termination or rejection.

In Colorado, where the first retail marijuana establishments opened January 1, 2014, a law states that workers cannot be fired for participating in legal activities while off-duty. Just as an employee can’t be fired for attending happy hour after work and enjoying a few cocktails, those who use legalized marijuana on the weekend should - in theory - not be reprimanded. But at the same time, the state's courts have contradicted this law by ruling that marijuana use isn't fully protected because the federal government still classifies it as an illegal drug.

With such ambiguous rules, it is difficult for employers to take a hard stance on the issue - especially in a state where marijuana has been legalized. Employers need to consider employee and customer safety while balancing personal freedoms, too.

As always, if an employee is observed violating company safety rules or creating a safety risk, you can and should take appropriate action to prevent harm. Similarly, if an employee’s recreational drug use interferes with quality or quantity of work, you have the right to address the work-related problems as you would with any other employee. ​

Hiring and Performance, Policies