You Can’t Fire Me! The Facts on Smoking, Toking, and Gunslinging at Work

28 October 2014
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Most employers are savvy enough to know that they cannot fire an employee  simply for filing certain claims (e.g. employment discrimination, workers’ compensation), “blowing the whistle” on potentially illegal conduct, engaging in union activity, or requesting a “reasonable accommodation” of a physical or mental disability.  These employers (or their attorneys) know that this type of conduct is protected under state and/or federal law and cannot form the basis of a discipline or termination decision.

However, some types of “protected conduct” are less obvious.  What at first blush may appear to be grounds for disciplining or even terminating an employee (e.g. testing positive for an illegal substance, bringing a firearm into the workplace) may, in actuality, be perfectly legal.  The following examples are illustrative of the difficulties that employers sometimes encounter in disciplining employees:

  1. Legal Marijuana Usage: While not every state deals with this issue in the same way, employees in Rhode Island who have a prescription for medical marijuana and use it for a legitimate medical reason cannot be subjected to disciplinary action or termination if they fail a company-mandated drug test.  However, most employers have the right to demand that their employees abstain from using (or being under the influence) of marijuana while at work.  Additionally, employers can enforce a policy that prevents the possession of marijuana at the workplace.
  2. Legal Tobacco Usage: Tobacco usage is legal for people over the age of 18 in all fifty states.  However, some employers are finding creative ways to keep their workplaces tobacco free. It’s now fairly commonplace to have a no-smoking policy on the employer’s premises–this protects other workers from the dangers of second-hand smoke. Employers in some states (e.g. Massachusetts) are taking their commitment to a smoke-free workplace one step further and are refusing to hire applicants who test positive for nicotine. A number of other states (e.g. Connecticut, Maine, and New Hampshire) have laws that expressly prohibit employers from implementing company policies that would result in a refusal to hire smokers.
  3. Carrying a firearm: Although we no longer live in the Wild West and it seems perfectly reasonable for employers to prohibit firearms in the workplace, there are a number of states that protect the right of employees to bring firearms onto company property.  For example, employers in Florida cannot even ask an employee if he or she has a firearm in his or her vehicle.

As the above examples make clear, the area of employee discipline can be a minefield for the unwary employer.  It is critically important for employers to know about these “protected conduct” gray areas before it is too late.

If you’re unsure about your rights as an employee or an employer, please contact one of our experienced employment law attorney.

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