Stressed out from her job as the manager of Brewed Awakening, a Houston-area coffee shop, Mary Jane Blunt heads to Colorado with her family for a well-deserved Spring Break ski vacation.  Blunt is excited to learn that Colorado recently legalized marijuana.  While on vacation, Blunt fully enjoys Colorado’s beautiful slopes and relaxed drug laws.  Responding to a random drug test on her return, Blunt provides urine and hair samples. Five days later her boss advises her that she tested positive for THC (the active ingredient in pot) and that her employment is immediately terminated for violating the company’s policy against illegal drug use.  Blunt argues that legally smoking pot one week ago did not compromise her job performance and because marijuana is legal in Colorado she didn’t violate the company’s policy.  Can Brewed Awakening terminate Blunt for her off-duty conduct in Colorado?

Yes.  As an at-will employee in Texas, Brewed Awakening can fire Blunt for any non-discriminatory reason including violation of the company’s stated policies prohibiting the use of marijuana.  Although some states prohibit termination based upon an employee’s lawful off-duty activities, Texas is not one of them.  Even if Blunt were to claim that she smoked pot for “medical reasons,” any use of marijuana is illegal under federal law and smoking marijuana is not recognized as a reasonable accommodation under the Americans with Disabilities Act.  While some states have made discrimination against medical marijuana users illegal, Texas, again, is not one of them.

Tilting the Scales In Your Favor

With Colorado and Washington both legalizing marijuana, “pot tourism” will become more popular.  Inevitably, “pot tourism” will create problems for employees returning to work after enjoying everything that these progressive states have to offer.  Companies intending to drug test their employees must implement clear policies and procedures.  Any drug testing policy should define what is considered to be a violation, which employees are subject to testing and the disciplinary actions which may result from violation.  Courts consistently uphold pre-employment drug tests as a condition of employment.  Post-employment drug testing can include random testing, post-accident testing, reasonable suspicion testing, and mandatory testing (e.g. the Department of Transportation requires testing for long-haul truck drivers).  While there are almost no restrictions on drug testing which may be required by private companies, government employers are more restricted as courts have held that government employees should be safe from unreasonable search and seizures.  HR departments should be aware that the results of drug tests are considered medical records and therefore must be kept confidential and separate from other personnel records.