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Employers in Colorado and Washington state, where recreational marijuana is now legal for adults, are wrestling with whether and how to adjust their drug policies to account for the new laws.

Legal questions facing employers include whether they can still fire workers who test positive for marijuana during a random drug test. Other questions include whether some types of workers, such as teachers, public transit drivers and police officers, can be held to a stricter standard than other workers, and how much discretion employers will have over what to do about employees who smoke marijuana while they are not at work.

Marijuana remains illegal under federal law.

“Employers big and small across the state are really struggling with these questions,” Danielle Durban, a Denver-based employment attorney at Fisher & Phillips LLP, told The Christian Science Monitor. “They have to come up with testing protocols that don’t alienate their own employees but cover themselves from liability, as well. Most are wishing legislators had given them more direction.”

Two court cases have addressed these issues. The Colorado Court of Appeals in April upheld the firing of a man who is a quadriplegic for his use of medical marijuana off the job. The court said that because marijuana is illegal under federal law, employees do not have protection to use it at any time.

A federal district court in August ruled an employee could be fired after testing positive for marijuana, even though the employee said he had never used the drug on company premises, and had never been under the influence of marijuana while at work.

A poll released in November found 64 percent of Americans say it is unacceptable for a company to fire employees for using marijuana during their free time in states where the drug has been legalized.


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