Pubdate: Tue, 30 Jun 2015
Source: Alaska Dispatch News (AK)
Copyright: 2015 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Lynne Curry

POT'S LEGAL, BUT I GOT FIRED FOR USING IT ANYWAY. CAN I SUE?

Q: We legalized pot in this state in February, so can you tell me how 
I got fired for THC on my drug test last week? I smoke in my house 
and on my own time and it's none of my employer's business.

My buddies tell me I should sue my employer for violating my rights. Can I?

A: Although we legalized recreational marijuana use in Alaska, you 
probably don't have a winnable lawsuit, particularly if your 
organization has a zero-tolerance policy regarding drug use.

In June, the Colorado Supreme Court unanimously ruled that an 
employer's zero-tolerance drug policy allows employers to fire 
individuals who fail company-sponsored drug tests. In the Colorado 
case, an employee made quadriplegic by a car accident used marijuana 
to control leg spasms.

Although the employee insisted he never used marijuana while at work, 
the employer fired him for testing positive. The employee argued he 
had protection under Colorado's lawful activities statute. The Court 
noted that because marijuana is illegal under federal law, it 
couldn't be considered a "lawful activity" under Colorado's lawful 
activities statute.

Further, although many state medical marijuana laws create an 
affirmative defense against criminal prosecution for medically used 
marijuana, they do not give patients an affirmative right to use 
marijuana, which would protect an employee with a legitimate need 
from being fired.

The Colorado ruling is the latest in a series of national decisions 
denying job protection to state-sanctioned medical marijuana users 
who medicate off-duty, and by extrapolation, to recreational 
marijuana users. Colorado's law additionally legalized marijuana for 
recreational use, but allows employers to prohibit marijuana use by 
their employees.

If Alaska courts rule similarly to Colorado's Supreme Court, your 
employer's policy likely trumps state laws allowing recreational 
marijuana use. While your buddies correctly believe employees can 
take their employers to court when employer policies violate employee 
rights under state law, they're forgetting federal law. Federal law 
considers marijuana use illegal and defines marijuana as a Schedule I 
drug, with no acceptable medical use. The federal Controlled 
Substance Act pre-empts any provision of state law that conflicts 
with federal law.

Where does this leave you as an employee and your employer? Under 
Alaska law, you can recreationally use a limited amount of marijuana 
in your own home. If your employer has a zero-tolerance drug policy, 
your private use can result in your being fired.

Meanwhile, some employers now omit THC from pre-employment drug 
screens and have modified their drug policies to allow exceptions for 
legal drug use. A case can be made that an employee's occasional 
off-the-clock, recreational marijuana use doesn't impact on-the-job 
performance.

Other employers hesitate to change their existing policies, fearing 
that any loosening of well-established polices may impact workplace 
safety. We're urging our clients to review their policies, before 
they lose long-term, high-performing employees whose private 
marijuana use shows up in random or scheduled drug testing.

Q: I like my job, which involves inputting outgoing invoices and 
recording incoming payments. I keep to myself and don't make friends 
easily. I'm part of our company's administrative group.

Because my supervisor and co-worker, her friend, spend their time 
texting, chatting and Internet surfing, I'm forced to answer the 
phone. This breaks my concentration and I make mistakes. None of the 
calls are for me; they're instead for my supervisor and the other 
employee, who handles customer requests and complaints.

My supervisor critiques me if I don't answer the phone quickly and I 
find this hypocritical. I'd go to the owner but I'm scared I'll get 
fired if I tattle on these two, as the owner likes them.

A: Before you go to the owner, have another conversation with your 
supervisor. You may learn she considers you the de facto receptionist.

If this discussion fails, go to the owner. Don't, however, make the 
discussion about your co-workers. Make it about your need to 
concentrate to avoid mistakes and the logic of the phone being 
answered by the employee most able to answer the customers' requests. 
If you present the situation effectively, you may be able to change 
who the owner and your supervisor assign to phone duty. If not, 
you've given the problem your best shot and can decide from there -- 
stay and put up with it, or look for a better job.
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MAP posted-by: Jay Bergstrom