legal issues with neighbors

Medical marijuana laws are constantly in flux throughout the U.S., which means that employers are often left wondering what to do when their company policies come head to head with an employee's legal marijuana use. Can you fire an employee for marijuana use when they're using it legally under your state's laws? This is what you need to know.

You don't have to permit marijuana use on the job.

While 25 states and the District of Columbia allow some form of medical marijuana use (or even recreational use), the laws in each state vary greatly. Federal law, however, still considers marijuana to be a Schedule 1 drug under the Controlled Substances Act (CSA)—which means that there is no protection for users under federal law.

That's important because that restricts the ability of employees to assert a claim for protected use of marijuana under the Americans With Disabilities Act (ADA). The ADA operates under federal law, so it isn't subject to variations in the laws from state to state.

You can probably fire an employee for marijuana use on their own time.

One of the problems with marijuana is that it isn't really possible to tell when exactly an employee last used the drug based on a blood or urine test. The presence of THC, the active ingredient in marijuana, can stay in a user's body long after the effects of the drug have passed. Many companies have zero-tolerance policies on drug use and do random drug testing. If an employee comes up positive for THC but asserts that he or she is using it legally for a medical reason only on his or her own time, what do you do?

Some states, like Delaware, prohibit employers from discriminating against employees who test positive for marijuana if they're properly registered as medical users. However, it seems like the courts are holding with the idea that the federal rules still trump any state's laws and have sided with employers who have chosen to enforce their zero-tolerance policies.

For example, even though Colorado allows medical marijuana and has a specific statute designed to protect workers who engage in a legal activity during nonworking hours, the court ultimately allowed the firing of a quadriplegic telephone operator who used medical marijuana while off-duty to control his muscle spasms. The court ruled that the state's statute could only protect activities that are legal under federal law—not state law.

While this seems like it gives you a clear green light to fire an employee who fails a random drug screening, you may have to be prepared to take the dispute to court. Because the laws around medical marijuana use are still being developed, that leaves any negative action by an employer open to a legal challenge.

You can take steps to minimize your risk of a legal issue.

How can you minimize the risk that your business will end up in court over a medical marijuana issue and a fired employee? You have essentially two options:

1. You can change your company policy to make an exemption for employees who use medical marijuana and are in full compliance with state laws (including necessary registrations).
2. You can continue to enforce the zero-tolerance policy and clarify your company policy toward medical marijuana use to eliminate possible claims of confusion.

If you choose the second route, make sure that you apply the policy consistently and explain to your employees that you are following the standards set by federal law, rather than state law.

Regardless of the choice that you make, consult with an attorney familiar with business law who can help clarify your company policies and keep you in line with any state regulations that you still need to meet (those not affected by federal law).