Balancing safety and legality with guns and marijuana in the workplace

Employers must now take into account a host of additional considerations when drafting and implementing company policies that touch on these two controversial issues

With the recent passage of “bring your gun to work” laws and the legalization of recreational and/or medical marijuana across multiple states, it is increasingly difficult for employers to maintain a proper balance between ensuring a safe and productive workplace and complying with the protections afforded by these new statutes. Indeed, employers must now take into account a host of additional considerations when drafting and implementing company policies that touch on these two controversial issues.  

“Bring your gun to work” laws

All 50 states have enacted laws that allow licensed individuals to carry concealed firearms in public — an entitlement that, in many cases, encompasses the licensee’s right to store weapons in their personal vehicles, even if the vehicle is used in the course of an individual’s employment or parked in an employer’s parking lot.

In fact, under Illinois’ Firearm Concealed Carry Act (FCCA), which went into effect in July 2013, a licensee’s right to keep a concealed firearm in his or her vehicle while parked on property owned by another remains intact even if the property owner has designated the premises and its surrounding areas as a “gun-free” zone under the Act.

Unfortunately, the FCCA leaves many important questions unanswered, making compliance with the new law even more difficult for employers.

For example, while the statute provides that property owners may prohibit the carrying of concealed weapons on property under their control by posting a sign issued by the state police, the law is silent regarding what rights individuals and/or entities, such as employers, who are merely in possession of property have with respect to banning concealed firearms from the premises. Furthermore, unlike the laws in other states, the FCCA does not offer guidance as to whether employers may adopt and enforce policies prohibiting employees from carrying a concealed firearm on their person or in their personal vehicle while performing job duties away from the employer’s premises.

The ambiguities of the law (and others like it) will likely be addressed by courts and/or legislative amendments as concealed carry licensing gets under way and workers raise the issue with their employers.

In the meantime, however, employers operating in states where “bring your gun to work” laws are in effect should continue to maintain robust policies prohibiting violence in the workplace and clearly delineate the places and individuals to which the rules apply. It is essential to emphasize to employees that dangerous and/or threatening behavior will not be tolerated, regardless of whether an individual is licensed to carry a firearm or not. Where possible, employers should take the necessary steps to designate office buildings and any adjoining spaces as “prohibited areas” in which concealed carry will not be permitted; for example, in Illinois, an employer that leases a space may consider asking the owner of the building if it would be willing to prohibit the carrying of firearms on the premises.

Finally, employers in “bring your gun to work” states should proceed with caution if they anticipate or are confronted with incidents that may become emotionally charged — consider having additional security on hand for particularly tense situations, such as termination meetings.

Marijuana legalization

The legalization of marijuana in Colorado and Washington, as well as the upswing in the number of states that have decriminalized the use of marijuana for medicinal purposes, has led many employers to question the impact such legislation will have on their drug-free workplace policies. Fortunately, despite the outwardly liberal stance of these laws, many of the statutes have been drafted to allow employers to retain control over their policies and practices regarding marijuana use.

Many states’ medical marijuana laws, including those in Michigan and New Jersey, specifically provide that employers may prohibit the use of marijuana in the workplace and/or while performing job-related duties. Illinois’ medical marijuana statute forbids employers from discriminating against qualifying users of medical marijuana; nonetheless, it contains a provision expressly preserving an employer’s right to institute and enforce a drug-testing, zero-tolerance and/or drug-free workplace policy, as long as the policy is applied in a nondiscriminatory manner.

Courts, too, have ruled in favor of employers on the subject of off-duty marijuana use, even when such use is permitted by a state statute. In Coats v. Dish Network, LLC, a quadriplegic employee licensed to use marijuana under Colorado’s medical marijuana act alleged that his termination, which was effected after he tested positive for marijuana in violation of his employer’s drug policy, violated Colorado’s Lawful Activities Statute, which prohibits employers from discharging an individual for engaging in lawful, off-duty conduct. The Colorado Court of Appeals rejected the employee’s claim, despite the fact that the employee had used medical marijuana within the limits of his license and had never used marijuana on the employer’s premises or while performing work-related functions. The court held that in order to be deemed “lawful” within the meaning of the Lawful Activities Statute, the activity must be legal under federal and state law, and that smoking marijuana, which remains prohibited under the federal Controlled Substances Act, did not qualify.

The case is currently under review by the Colorado Supreme Court. If upheld, the decision is likely to influence the outcome of similar challenges in other states. For now, employers with a presence in states in which marijuana use has been legalized should make sure that their drug-free workplace policies reference both federal and state law in defining prohibited conduct under the rules.

As illustrated in the Coats decision, such policies can play an important role in insulating employers from liability when they take action against employees engaging in otherwise “lawful” conduct under state marijuana statutes. To the extent that any particular state has provided some degree of protection from employment discrimination for marijuana users, employers should tailor their policies to comply with the requirements of the law, and ensure that the rules — including any drug-testing procedures — are applied in a consistent manner. Finally, employers should train management to recognize the symptoms of possible impairment due to marijuana use, and make sure supervisors are equipped to take the appropriate safety measures in the event of a drug-related accident.

Conclusion

The law surrounding concealed carry and the legalization of marijuana is likely to evolve dramatically as individuals begin to exercise their rights under these statutes and courts face the task of interpreting the newly-enacted provisions. Employers are advised to stay abreast of these developments, and periodically review any relevant policies to ensure compliance with the law while also maintaining a safe and secure workplace.

 

Correction: An earlier version of this article noted that approximately 22 states have enacted laws that allow licensed individuals to carry concealed firearms in public. To date, 21 states and the District of Columbia have passed laws legalizing medical and/or recreational marijuana use. However, all 50 states have passed laws allowing licensed individuals to carry concealed firearms in public.

Contributing Author

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Eugene A. Boyle

Eugene A. Boyle is a partner at Neal Gerber & Eisenberg. He has extensive experience counseling and defending companies nationally in all facets of labor...

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Contributing Author

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Judith Kong

Judith Kong practices in Neal, Gerber & Eisenberg’s Labor & Employment Practice Group. She focuses her practice on unemployment insurance,...

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