Going to Work Stoned? 3 Legal Points to Ponder

By Daniel Taylor, Esq. on September 22, 2014 | Last updated on March 21, 2019

With recreational marijuana becoming decriminalized and even legalized in an increasing number of states and cities, marijuana use may not be the clandestine activity it once was.

But what about showing up to work high on pot? A new poll conducted for the website Mashable by SurveyMonkey found that nearly one in 10 American workers have shown up to work stoned at least once.

But what should you consider before going to work high? Here are three legal points to ponder:

  • Can you be subject to a "surprise" drug test at work? Employers don't always have the right to drug test every employee. However, workers who work in specific fields or jobs in which the public safety is at risk, such as airline pilots, truck drivers, and heavy machinery operators may be subject to "surprise" drug testing. Also if an employer has reasonable suspicion that an employee is using drugs, such as physical evidence of drugs at work or noticeable physical symptoms, the employer may likely drug test an employee pursuant to an established company policy -- which employees usually consent to when hired.
  • What happens if you get into an accident? If you are involved in a workplace accident and an employer suspects that drug use may have played a role, an employer may also typically demand a drug test pursuant to a written policy in an employment agreement or employee handbook. If your drug test comes up positive, it may prevent you from obtaining workers compensation benefits.
  • What if you have a prescription? Many states allow those with a doctor's prescription to legally possess and use marijuana. But while your prescription may protect you from being prosecuted, it may not prevent you from being fired. Even in Colorado, where marijuana is now legal even for those without a prescription, the state's Court of Appeals upheld the firing of a quadriplegic medical marijuana patient who was fired from his job as a telemarketer after a testing positive for marijuana. The court ruled that since marijuana was still illegal under federal law, employees generally have no protection against being fired for using the drug.

If you want to know more about the laws that govern workers, employers, wages, and workplace safety, check out FindLaw's Learn About the Law section on Employment Law.

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