It has become increasingly difficult to separate employees’ private lives from their workplace obligations. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer. But now, with a number of states passing legalized marijuana the question becomes whether an employer can enforce a zero tolerance policy regarding its use.
Last year I wrote a White paper entitled; Legalized Marijuana: Privacy Rights v. Workplace Rights (if anyone wants a copy just email me at firstname.lastname@example.org). In that paper I discussed the employer has every right to enforce its anti-drug use policy even if the use of marijuana is legalized for medical or recreational use. I based that opinion on a U.S. Supreme Court decision (Skinner v. Railway Labor Executives Association) and a California Supreme Court decision (Ross v. RagingWire Telecommunications). Now, all of those happy smokers in Colorado have awaken to the harsh realities! The Colorado Supreme Court recently handed down a decision that the Colorado’s off-duty conduct law did not prohibit the termination of an employee who had used marijuana off-duty (Coates v. Dish Network).
Soon voters in Ohio will be heading to the polls to vote on the statewide legalization of marijuana. Here we go again-maybe! There is also a pending bill (Senate Bill 180) which would would prohibit an employer from taking an adverse action against an employee, without just cause, for that employee’s exercise of a constitutional or statutory right within his or her private real property or motor vehicle.
What types of rights might this bill protect? Well, if marijuana use becomes legal, employers will not be able to terminate an employee for the use of this legal drug outside of work. And while an employer will still be able to fire an employee who is high on the job, SB 180 creates a difficulty in proof. Marijuana stays in one’s system for a month or longer. How will an employer have any drug-testing confidence to fire an employee if a drug screen cannot differentiate between on-the-job use versus off-duty use?
We can debate the merits of off-duty-conduct laws. Some will tell you that employees should have the freedom legally to do what they want, when they want, during their personal time. I think that in a 24/7 world, employees need to hold themselves accountable for their own actions 24/7, and should expect their employers to do the same. Regardless of your opinion on this philosophical issue, we should all agree that SB 180 creates many more problems than it solves, and, in its current form, has no business becoming the law of Ohio. Just my humble opinion. If it does become law then it is easy to see that it could have a spiraling effect in other states. Time will tell.