Can an employer in Texas still fire someone for smoking pot? For once, my lawyerly answer does not have to be “maybe”. Yes, you can fire an employee for testing positive for marijuana.
Unlike Colorado, Washington state, Oregon, Alaska and Washington, D.C., the Lone Star State still treats the recreational use of marijuana as illegal. It is also illegal to buy, sell, grow or even possess pot in Texas, so going to Colorado to buy it and then bringing it back to Texas is not an option.
If your written substance abuse policy tells your employees that you prohibit “illegal drugs”, then you have the right to enforce that policy regardless of whether the pot is illegal under federal, state or local laws.
Therefore, a Texas employer can still require a drug test of an applicant, a current employee, an employee involved in an accident or when the employer has a reasonable suspicion of drug use. If the test shows that the employee has used marijuana, the employer can discipline or fire the employee for violation of the company substance abuse policy.
But what if the employee claims that he is smoking pot for medicinal reasons? The short answer is: it doesn’t matter. He still is violating the law and your policies and can be disciplined or fired.
Won’t the employees file a disability discrimination case? Possibly, but the courts have consistently ruled that an employer is not required to “reasonably accommodate” illegal drug use. And even if medicinally used, it is still illegal to use marijuana under federal law in every state (and state law in Texas).
The Texas legislature legalized one type of cannabis for medicinal purposes in 2015–an oil called cannabidiol, or CBD, extracted from the marijuana plant. It is used to treat rare forms of epilepsy. Whether this is the beginning of the slippery slope remains to be seen.
But even if your employee suffers from epilepsy, the use of this oil in Texas can be grounds for termination because at this time in July 2016, federal law is still hanging tough on treating all cannabis as illegal. Therefore, a medicinal user is violating your substance abuse policy prohibiting “illegal drug use.”
Even in those states that have more liberal marijuana laws, most of the legislatures have backed an employer’s right to have zero-tolerance policies when it comes to drug-free workplaces. Some states expressly stated in the legalization acts that employers are allowed to apply their drug policies consistently and equally to all employees and not have to make exceptions for medical marijuana.
The key for employers is to have a clear, written policy, and then to consistently enforce your substance abuse policy across the board. Don’t get lax with enforcement at your Colorado store location by saying “it’s just pot” if you are later going to want to fire an employee in Texas who is stoned and causes a workplace accident that seriously injures a coworker.