Hey everyone, I’m new here, but trying to settle a debate with someone.
Side note before we get started: I’m self-employed, so I won’t ever run into this situation.
Let’s say I travel to Amsterdam, where marijuana smoking is legal. When I come home to the US, and were forced by my employer to take a drug test, could I still be fired if I tested positive? I have not broken any law, as I haven’t smoked marijuana except where it’s legal. I am not currently under the influence of any illegal drugs.
My friend firmly believes that you could still be fired, and I can’t see how that could possibly be true. I’ve tried to apply this logic to other things where they are legal in some places and illegal in others, and can’t really come up with a comparable test case. Have I, in all cases, signed something when hired by my employer that says that if I fail a drug screen (for any reason), I am immediately terminated, or is that just a presumption?
Thank you all in advance for helping me settle this argument!
My state is employment at will. If you aren’t in a union, and you do not have a written employment contract–or an employee handbook viewed as quasi-contractual, you can be fired at any time, for any reason, or for no reason–with exceptions for unlawful discrimination. So yeah, in this state, you can and probably would be fired for testing hot after a trip to Amsterdam.
Oh, I wasn’t saying I would show up to work high. I’m just saying if I smoked in a place where it was legal, and then (days) later returned home, where it wasn’t, I haven’t broken a single law.
Also, you assume that if something is legal in another country, a US citizen cannot be punished for doing it there. But this is incorrect. For example, the Controlled Substances Act provides that “This section is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States. Any person who violates this section shall be tried in the United States district court at the point of entry where such person enters the United States, or in the United States District Court for the District of Columbia.”
I’m not sure if any of the possession laws are extra-territorial like this, but they might be.
Richard, you’re talking possession though. I’m just talking about going there, smoking, and then eventually coming home, clean, with nothing to show for it. US law doesn’t say that I can’t smoke while there, does it? If so, that seems extremely big-brotherish. I’m definitely not talking about possessing anything upon my return.
Along that same train of thought, someone 18 years of age would be breaking US law if they bopped over the Canadian border to have a beer, and subject to arrest if they returned, sober, the next morning?
Since you are self imployed, you probably haven’t read any of the company drug testing policies that others have to sign. If you can get a copy of one I believe the wording states that ‘failure to pass’ the drug test is the issue that may lead to dismissal.
The policy does not address the legality of said use. Failure of the test is the issue.
Oregon is a ‘medical marijuana’ state. You can get a state issued pot card that allows possesion of a certain amount, and allows you or a caregiver to even grow a limited number of plants. But if you have signed an employer drug policy that prohibits a positive result on a drug test, doesn’t matter, you are getting canned.
To sum it up, the agreement that you sign regarding drug policy is between you and your employer, as a condition of employment, without regard to current drug law.
If pot is ever fully legalized many employers may still choose to retain these drug policies. And fire you if you violate them. When you accept a job there may be many other conditions of your employment. If you sign an agreement and violate the rules you are breaking an employment contract.
ghardester, that’s exactly the kind of thing I’m looking for.
Prior to being self-employed, I’ve worked for companies who had random drug testing policies. However, I didn’t keep a copy of the policy, and I can’t say for certain that I ever did or didn’t sign anything agreeing to it. I guess I’d have to pay closer attention next time.
If I take your comments to the logical conclusion, it would be incumbent on the employer to have a stated drug policy, and to make me sign it upon employment (assuming, again, that I’m not in an at-will employment state), right?
This seems like the kind of thing that would be rife for lawsuits, but searching on the intarwebs produced nothing of the sort. SMDB’ers to the rescue
No, you misunderstand. Generally US law only applies to actions within the US. But some laws apply extra-territorially such that they prevent you from doing things that are legal in foreign countries. They will prosecute you upon your return for your acts in those countries, not because you’re still doing something wrong at the border. The distribution of drugs is one such act. I don’t think possession is, but I’m not certain.
You can legally buy cigarets (if you’re an adult) and smoke in your own home. But the courts have ruled it’s legal for an employer to have a “no smiking, period” policy and fire you for violating it.
Do you have a cite for that? Why is medical marijuana handled differently from, say, prescribed opiates or amphetamines that would go through a medical review officer and not be reported as a positive test? Assume here we are not talking about the type of safety sensitive job where prescription drug use needs to be formally reported.
ETA: Legal use and prescription use are not, I don’t think, directly comparable. Prescription drugs are generally considered to be medically necessary when used as directed.
Employers must have a written drug policy that clearly states the drugs to be tested for, method of testing, reasons for testing (such as pre-employment, post accident or random), the procedure for challenging the test, etc. And this can be quite lengthy. The employee signs that they have read and understand the policy and that becomes part of the employment agreement.
There are many such agreements that are commonly signed when accepting a job. Pages and pages. Non-competition agreements where you cannot go into the same line of work for X number of months after you leave the job. Written safety policy, anti-discrimination, sexual harrassment. You read and sign that you understand. Especially for management jobs without a barganing unit (union). If you belong to a union, the rules are generally part of the union contract.
Smoking was ponted out as one area. A company can declare a smoke free work place and is not required to even set aside a smoking area for use. You sign that you understand the policy when you take the job. Sneak a cig and get fired.
Most places have a no firearms policy. It is legal to possess guns off company property but not on. One of my friends returned to work after a hunting vacation without unpacking his truck and promptly got fired because his hunting rifle was in his truck. He got the job back after union negotiations and admission of guilt. Permits or no permits, rights or not, he signed that he was aware of the rules and violated them.
Drugs, legal or not, work the same way. Even if you are under doctors orders and are taking something that MAY impare you, you are usually required to let your boss know. If you have a medical condition that may impare you, you are required to let them know.
All business and corporations are different. But you need to pay attention to what you sign as a condition of work. The biz can make a lot of rules that have nothing to do with what you are allowed to legally do, you agree and get the job or you don’t.
The employment agreement does not have to be based in what you are allowed to do off company time. On company time you do it their way or get to 'explore other opportunities."
In the case of marijuana, the federal government does not recognize the legality of states enacting medical use. It is still illegal on a federal level regardless of what the state may say. A business is under no obligation to allow use. And Oregon is an “at will” state too. You can be fired at anytime, for any reason, that does not violate anti-discrimination laws. So far there is no anti-discrimination law for ‘my back hurts and I like to get high’. And I could go get a card tomorrow by saying just that, the standards are real loose, you just need to see the right doc.
In the case of legal prescription drugs. If you are chosen for a drug test and test positive for opiates or amphetamines and you say “oh, wait, here’s my prescription”, and your employer didn’t know about this ahead of time, you have a problem. Most drug policies state that you must keep your employer informed of any medication that may affect your work. So if your doctor or the drug instructions say ‘avoid operating machinery’ and you don’t tell the boss, well, drug policies are written to protect the company from liability, not to protect your rights.
Here’s something else to consider: the employer’s drug test is not designed to see whether you comply with US laws on controlled substances. Their goal is to see if you present some kind of risk in the workplace. If you test positive for pot, it doesn’t matter to them whether you used it legally or not. All they care about is that you have used pot, which makes you more likely to use it again and in a way that might affect your work performance.
As another example of the disconnect between employer testing and law enforcement is that if you fail a drug test, no one is going to report it to the police.
Let me describe a potential scenario though… It’s my understanding that many workplaces only drug test in the first place because they get some kind of government tax credit (it’s pretty costly to drug test). So if the government legalized drugs and removed the benefits, it seems like a lot of workplaces would ditch drug testing in the first place (regardless of their personal opinion in the matter).
Actually, it probably isn’t. Marijuana is on “List II” of the opium law, meaning it’s illegal to import/export, possess, grow, manufacture, sell, deliver, supply or transport. Technically, you could smoke it if you find some way of not owning it, though.
In practice, selling List II drugs is restricted (in most municipalities you need a license to operate a coffee shop, which is hard to get, and hard to keep, and you can only keep a relatively small amount in stock), and production (growing more than 5 plants, outside) and import/export is actively prosecuted. Owning List II drugs for personal use or using (even in public) is explicitly not prosecuted and police will not bother you for it except in certain areas or possibly if you’re a minor.
The only reason the system works at all, is that everybody realizes that the result of truly enforcing the laws (or even all the rules of the “endorsement” that allows coffee shops to exist in the first place) will be the marijuana market going completely underground, ending any government oversight. For example, right now a coffee shop will lose its license if caught selling to minors.
Yes you can be fired anytime for any reason other then the federal discrimination laws. Even if you have a medical MJ card you can be fired. It has noting to do with the law but company policy. They say you can’t do it and if you do it your gone. This is a simple concept.
