Legal Pot A Minefield For Employers

In Arizona and Michigan, employers can’t terminate based on pot use alone. Meanwhile, in California, “if you fail a drug test, you’re gone,” says Todd R. Wulffson, a partner at Carothers DiSante & Freudenberger. The disparities in laws among states that have legalized medical or recreational marijuana – and in how those states have addressed employer’s rights – are leaving companies in a difficult position when establishing workplace policies. One solution, Mesch, Clark & Rothschild partner Thom K. Cope told the ABA Journal, is to designate certain positions as “safety sensitive,” meaning those jobs have zero tolerance for workers found to be under the influence. Many unions require just cause in terminations, and an increasing number of cases have determined that testing positive for marijuana use at work does not meet that standard. Zero tolerance policies, disability rights in the workplace, and an evolving matrix of state and federal laws make this a complex issue.