This is a question we batted around back in June, in that case applying to workers in the private sector. If you live in a state where marijuana has been legalized, either for medical or recreational use, can your employer fire you for failing a drug test even if you were only using marijuana in off work hours? It turns out the answer is generally yes, though it’s a bit complicated.
Today the same issue arises for public sector workers. Government Executive examines the question of whether or not federal workers should legally be allowed to fire up a joint after they leave the office and still keep their jobs. That’s not currently the case, but there’s a bill under consideration which would make it legal for them to do so.
A bipartisan pair of lawmakers introduced a measure to ensure federal employees who use marijuana legally in their home states are not penalized, potentially reversing current policy that prohibits such consumption in all circumstances.
The Fairness in Federal Drug Testing Under State Laws Act (H.R. 6589) would prohibit federal agencies from using a failed drug test as the sole reason to deny or terminate employment for a civil service position. The measure would exempt positions requiring top secret security clearances and failed tests that result from probable cause, such as suspected impairment on the job. The measure was introduced by Reps. Charlie Crist, D-Fla., and Drew Ferguson, R-Ga.
Crist was inspired to put the bill forward because of the large number of veterans in his district, an aide said, who are disproportionately employed by the federal government. Recent polling from the American Legion found that more than one in five veterans currently use cannabis to treat a medical condition.
I hate to keep using the same phrase, but it’s still complicated. In terms of strict legality, the main reason that private sector employees can still fire pot smoking employees is they can have a company policy stating that it’s a firing offense to be in violation of federal law, and marijuana is still illegal at the federal level. When you’re talking about federal employees it would seem to be an almost automatic disqualifier.
This sounds like Congress is thinking about passing a law which essentially voids portions of another federal law (regarding marijuana possession) under specific circumstances without going back and changing the drug laws to remove pot from Schedule I of the Controlled Substances Act. Even if that’s constitutionally allowable it sounds as if they’ll still be leaving a confusing mess for everyone to clean up.
Now here’s where it gets more complicated. Crist is making the argument that a significant number of veterans are both federal employees and taking medical marijuana prescribed by a doctor in states where that’s legal. That makes for a much more appealing pitch than just giving a free pass to recreational users. But even in the states where medical marijuana is legal, it’s still technically a federal crime.
The last point to make is that it’s harder to tell if someone is stoned on the job as compared to somebody who is drunk. If you smell like booze and your blood alcohol content level is above a certain point, you’re drunk and they can fire you. But you might have smoked pot the night before and still smell like it (if you don’t shower often enough) and it will show up in a blood test for weeks as compared to only hours for alcohol. How will supervisors know if an employee was just toking a joint the night before (does anyone say that anymore? Dear God I’m getting old) or if they were firing up in the parking lot right before coming into the office?
For the final time… it’s complicated.