A visitor to Colorado or Washington can enjoy all sorts of fine legal activities in those states. Ski. Hike. Drink local beer. Eat local food. Take a scenic drive on a twisting mountain highway. Smoke pot.
But only one of those pastimes might get a traveler in trouble when he gets back home — and it’s not the scenic drive.
Softening attitudes about marijuana have created new avenues for tourism but also created a quandary for travelers: Yes, you are free to smoke or eat weed in Colorado and Washington. But should you face a drug screening back home, that perfectly legal activity a few states over suddenly doesn’t seem quite as legal.
“An employer is very much empowered to fire you for any trace of marijuana in your urine regardless of where it comes from,” said Erik Altieri, spokesman for the National Organization for the Reform of Marijuana Laws. “All it takes is for your employer to call you in for random drug test after that trip to Aspen, and you could lose your job.”
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Alteri said he has heard of “about a dozen” people who have lost a job in such a scenario, but he did not provide further details.
Though attitudes about marijuana are changing rapidly — Oregon and Alaska have approved recreational use, and five more states will put the matter before voters in 2016 — an obvious disconnect is growing between updated laws and old ideas.
Courts are still in the early stages of — ahem — hashing out the matter. In October, the Colorado Supreme Court took up the issue of whether a man’s legal use of medicinal marijuana could be grounds for his employer, Dish Network, to fire him in 2010.
Though the case weighs the issue of medicinal consumption, it could be a bellwether on whether legal recreational use also is protected, at least in Colorado. Though the man fired by Dish Network, Brandon Coats, insists he was never high at work, traces of pot can remain in the system for weeks, which led to his positive test result.
Therein lies the issue for travelers: What was legally done two weeks ago can remain in the body. Unlike alcohol testing, most drug tests do not necessarily indicate present impairment.
“I don’t think the 55 percent of voters that supported decriminalization thought their jobs would be at risk for their legal behavior,” said Rachel Gillette, a Lafayette, Colorado, attorney whose practice focuses on marijuana law. “The intent and will of the voters was to say that this is a lawful activity.”
Gillette, who also is the executive director of Colorado NORML, said she hears “every couple of months” from out-of-state residents who have lost their jobs after smoking legally in Colorado. She said there is nothing she can do to help them.
“People need to be very aware of their employer’s drug-testing policy before they come to Colorado and partake,” she said. “Most people probably haven’t read it for a while, and maybe they need to.”
Though 2014 visitor statistics are not yet available, Colorado tourism spokeswoman Carly Holbrook said officials predict “very strong visitation numbers” during what was the state’s first year of marijuana legalization. Though the state is not positioning itself as a destination for pot-smokers, several companies have sprung up offering “marijuana tours.”
(Holbrook added that the last year also saw record snowfall and that the tourism surge can’t be solely attributed to legal marijuana. Fair, but let’s also presume the obvious: Legal weed probably didn’t hurt tourism.)
Cleve Clinton, a lawyer with the Dallas office of Gray, Reed & McGraw, said legality is no protection against an employer’s decisions about hiring and firing. A business owner can discriminate against people who drink orange juice or own cats just as well as a person who fails a drug test.
“There’s a difference between crimes and contracts,” Clinton said. “Crimes are things the public says, ‘We don’t want that.’ Contracts define relationships between people, which can be narrower in scope than a crime.
“You can refuse to hire anybody you want so long as there’s not a statute, ordinance or law that protects them,” Clinton said.
While the list includes protections for age, race, gender and religion (among others), it does not include pot-smokers and probably never will. More likely, time and changing attitudes will iron out the discrepancy. Just look at the speed with which same-sex marriage became a mainstream cause.
In the meantime, travelers need to be aware that what happens in Colorado and Washington doesn’t necessarily stay in Colorado and Washington.
“I completely understand an employer wanting to know if someone is impaired at work,” said Gillette, the Colorado lawyer. “But it just doesn’t make sense to fire an employee for legally smoking a joint two weeks ago at a concert in Colorado.”