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Pot may be legal but it can still get you fired

Time:2016-11-18 19:51wine - Red wine life health Click:

LEGAL still fired

Here’s a rule one Denver convenience store never expected to enforce: Microwaves cannot be used to heat pee.

The store is next to ARCpoint Labs of East Denver, which conducts drug testing for businesses who screen prospective workers before hiring them.

In Colorado, recreational marijuana has been legal since 2012, but it’s still forbidden by many employers.

That apparent conflict means lab owner Kelly Kirwan sees people regularly attempting to rig their drug tests. Some try to use someone else’s urine (requiring them to reheat the pee for authenticity; sparking the microwave rule at the nearby convenience store), while others try to mix in powders they buy via Internet in the hope of masking pot-positive results.

These schemes unfold because even though marijuana is legal for personal use, workers can still get fired — or not hired or sent to rehab — for having the drug in their system.

“A lot of employees got into trouble,” Kirwan said of the early days of Colorado’s law. “They thought, ‘It’s legal, let’s go smoke Saturday night!’ They didn’t understand that the employer policy still remains intact.”

The same is now true in California.

Voters approved Proposition 64 by a healthy margin on Nov. 8. That means Californians are free to consume cannabis on private property, carry up to an ounce and grow up to six plants at home.

But Proposition 64 also states that employers remain free to test workers for marijuana use before hiring them, or at any point during their careers. And if workers test positive, the law says companies can choose to let them go ­— even if there’s no indication they were actually high on the job.

Law on employers’ side

“How can you be fired for something that is now legal?”

That’s one of the most common questions Californians are posting to social media and asking over drinks (or cannabis consumption) in the days since Proposition 64 passed.

“People think that they have all of these job protections, but they really don’t,” said Adam Winkler, a professor of constitutional law at UCLA.

Bosses can refuse to hire workers who smoke cigarettes or are alcoholics, he said. Employers can force workers to turn over passwords to private social media accounts. The worker’s remedy, Winkler said, is to walk away from the job.

“Employment in the United States is at will,” Winkler said. “That means employers can hire whoever they want, under any conditions they want, with a few exceptions.”


Federal law says companies can’t discriminate based on things like gender, race, age, religion or disabilities. California has added additional protected classes of workers, including sexual orientation, military status or health conditions.

“Marijuana is not one of those protected classes,” Winkler said.

Employers’ freedom to screen workers for cannabis is specifically written into Proposition 64, and it might be a key reason it’s now state law.

The last time Californians voted on recreational marijuana legalization in 2010, authors of Proposition 19 added a clause prohibiting employers from disciplining workers for marijuana use unless their performance was impaired. Nate Bradley, executive director of the California Cannabis Industry Association, called that clause a “poison pill” that doomed Proposition 19 to failure.

Even people who are using marijuana on the recommendation of a doctor for legitimate medical conditions aren’t protected.

In 2015, the Colorado Supreme Court ruled that the satellite TV company Dish Network was within its rights when it fired telephone operator Brandon Coats, a quadriplegic who used medical marijuana in off-duty hours to ease leg spasms.

The California Supreme Court made a similar ruling in 2008, when they ruled that a telecommunications company had a right to fire retired Air Force veteran Gary Ross over his medical marijuana use.

Raymond Marin, 45, knows that scenario all too well.

The Fresno resident inherited a liver disease that limits his ability to process toxins. So rather than turn to painkillers when he hurt his back earlier this year, he got a doctor’s recommendation to use medical marijuana.

When he tried to return to the job he’d held for five years at a local winery, he informed his boss that he would probably test positive for cannabis. He offered up a copy of his doctor’s referral and volunteered to do random drug tests. But when that first test came back positive, he was immediately fired.

Marin not only lost his job that day, he also lost his medical benefits. And because he was fired for drug use, he can’t collect unemployment benefits.

“I’ve even been called a dirty drug addict,” he said. “Now I’m just trying really hard to stay above water and deal with everyday tasks.”

Science hasn’t caught up

Penalizing workers for marijuana use is complicated by the unique way the drug works in the body and limitations of current tests.

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