In states where marijuana is legal, consuming cannabis medically or recreationally has become more socially acceptable. Despite this, federal law still classifies marijuana as an illegal substance and requires colleges and universities to take a hard line in prohibiting its use. Failure to create and enforce school policies that mirror federal law, regardless of state laws, can mean losing the federal funds that are crucial to many schools' operating budgets.
In practice, this means that most colleges and universities prohibit the use of marijuana on campus. But many schools struggle with the gray area that comes with off-campus marijuana use. If a college or university employee uses marijuana off-campus, on their own time, is this a violation of federal law? Does the school risk losing its funding? Will the employee be disciplined or fired?
Experienced attorney-advisor Joseph D. Lento can help employees who've been charged with violating their school's marijuana policy as they navigate the complicated web of federal and state laws and their employer's policies on marijuana use.
What are the Federal Laws Prohibiting Marijuana Usage in the Workplace?
Any American institution of higher education (IHE) that receives federal funding must comply with the Drug-Free Workplace Act, which forbids the consumption and distribution of illegal substances in a workplace environment. Additionally, the Drug-Free Schools and Community Act requires that all IHEs establish drug and alcohol regulations and notify students and employees of them annually. These yearly notifications should include information on sanctions for violations. IHEs could lose federal funding if they don't follow these laws.
Drug Testing at Work
Drug violations are mostly determined in the workplace via drug test. The legality of testing for marijuana varies between states, but many employers require tests if there is “reasonable suspicion” of drug usage. This includes physical, behavioral, or psychological symptoms of being under the influence, like slurred speech, bloodshot eyes, a decrease in quality of performance, increased tardiness, and other signs.
Laws Regarding Off-Duty Marijuana Usage
The Drug Free Workplace Act and Drug Free Schools and Community Act remain vague when it comes to legal off-duty (and off-campus) use of marijuana. Some states have stepped into that void by enacting legislation to protect against discrimination for such usage. For instance, New York employers cannot test for marijuana during the job application process or during employment. Below is a list of other states with similar laws:
- Arkansas
- Arizona
- California
- Connecticut
- Delaware
- Illinois
- Maine
- Maryland
- Massachusetts
- Minnesota
- Montana
- New Jersey
- New Mexico
- Nevada
- Oklahoma
- Rhode Island
- South Dakota
- Vermont
- Virginia
- West Virginia
Exceptions come into play if an employer can prove that your off-duty drug usage adversely affects your work performance or safety.
Other states do not offer such protections. Some employees may assume that they are exempt because they are approved for medical marijuana usage, but that is not the case. For example, the Colorado Supreme Court ruled in 2015 that companies could fire employees for a positive drug test, even if they had a valid medical marijuana card and used it off-duty.
Examples of Drug and Alcohol Policies at IHEs
The fear of losing funding is so great that the solution at most IHEs has been to institute stringent Drug and Alcohol policies. Some schools, like the Ohio State University, are specific about how they'll enact their regulations. In their policy, pre-employment, random, and reasonable suspicion drug testing are all possible, depending on the job position. It's up to the supervisors to determine if off-duty usage affects workplace performance, leaving the employee with little say.
Possible Sanctions for Violation of a Drug-Free Workplace Policy
If you are subjected to drug testing, you will be notified of the reason. If the test comes back positive, the school will usually investigate and determine what sanctions, if any, to impose. Depending on the severity of the offense and history of prior violations, consequences may include:
- Oral warning
- Written warning
- Random drug testing after a violation
- Denial of worker's compensation
- Demotion
- Leave of absence without pay
- Termination
Consequences also may be more severe if you work a job where safety is essential, like transportation services.
Be aware that at some institutions, like Tulane University, refusal of a drug test is treated as a positive result. It's worth noting that termination could result in a loss of health insurance and ineligibility for unemployment benefits. These policies are not to be taken lightly.
What Can You Do to Protect Yourself?
Know that you have options if you find yourself subject to an investigation for a positive test result.
If legal marijuana usage took place off-campus, you could make a case for workplace discrimination, depending on what protections your state offers. Given the variation in policies between schools, and the variation in laws among the states, you might also want to look into the legality of the drug test. Drug tests are illegal if:
- They disproportionately target people based on their age, gender, or race
- The employer publishes the results to a third party
- They violate individuals' privacy (e.g., forcing them to do a urine test in front of an observer)
These issues and others should always be discussed with legal counsel.
Call Joseph D. Lento Today!
It's essential to consult a knowledgeable attorney-advisor like Joseph Lento at the Lento Law Firm in the event of a drug policy violation at your college or university. As an experienced defender of higher-ed students and employees from coast to coast, he can help you protect your career and your livelihood. Call 888-535-3686 or contact us online today for a consultation.
