What If Your Agent Smokes Pot?

Employment laws are getting murkier around the issue of medical marijuana. If an agent tests positive, you may not be able to outright fire them.

November 9, 2014

In 2010, Brandon Coats was fired from his job as a telephone operator for Dish Network in Colorado after testing positive for marijuana in a company drug screen. Now it’s the employer who may be held liable.

Coats, a quadriplegic who lost the ability to walk after a car accident when he was a teenager, is certified to use marijuana for medicinal purposes to gain relief from his body’s uncontrollable spasms. He’s suing Dish Network for wrongful termination of employment, saying his firing was not based on performance and disregarded his medical needs. The case is now before the Colorado Supreme Court. If the case goes Coats’ way, it could rewrite employment laws and affect employers’ rights to make hiring and firing decisions based on drug tests.

For broker-owners and managers, particularly those who live in states where some form of pot use is legal, the case deserves to be closely watched. If you have an agent that tests positive for pot, human resources experts say, don’t be quick to let them go, or you risk a lawsuit yourself. This advice applies to independent contractors as well as full-time employees.

Marijuana use for medicinal purposes has been legalized in 23 states; four states have OK’d it for recreational use. The result is that more than half the nation’s REALTORS® live in jurisdictions with laws that permit medical or recreational use. The federal government still regards marijuana as an illegal substance, and federal law trumps state law — but there’s a catch.

There haven’t been any challenges to state marijuana laws at the Supreme Court level, noted NAR Senior Policy Representative Megan Booth during the “Medical Marijuana and R.E.” session at the REALTORS® Conference & Expo in New Orleans. So state laws stand. Therefore, employees and independent contractors in states with legalized medical marijuana may have a case against an organization that fires them for a positive drug test.

This doesn’t mean brokers and other employers don’t have the right to ensure safety in the workplace or demand that their employees be capable of performing the essential duties of their jobs, said NAR Human Resource Services Director Donna Garcia. But if a broker is concerned about the impact of an agent’s pot use, it should be tied directly to performance on the job and nothing else, she said. Even independent contractors are required to follow whatever drug policy the company they are working for has in place.

In the case of Coats, he says he was consistently regarded as one of Dish Network’s top-producing employees, and there was never a recorded complaint about his performance. That could be what hurts Dish Network the most in the case. So brokers should be careful not to overstep their bounds regarding an agent’s marijuana use.

“If their performance is fine and they’re conducting their essential job functions, I don’t know what grounds you would have to fire someone,” Garcia said.

Showing up to work impaired is another matter, she added. The best way to protect yourself from liability is to write specific language into contracts that sets expectations around your drug policy.

Garcia suggests that you make it clear in contracts that you do not allow drug use on company property or during situations when an employee or independent contractor must act in a professional capacity. If you decide to pre-screen individuals for drugs, make those expectations explicitly clear in the contract.

Garcia offered NAR’s written policy as a template: “The Association prohibits the use, possession, distribution, or sale of illegal drugs, and distribution or sale of legal drugs, while on Association business, on Association property, at an Association event, or in an Association vehicle. The Association reserves the right to require employees to submit to a drug and/or alcohol test at its discretion. Refusal to take a drug and/or alcohol test is grounds for disciplinary action, up to and including termination.”

“Luckily, courts side with employers’ rights to test workers for drugs,” Garcia said. “But you shouldn’t test just to test. You need to have a reason for doing it.”



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Graham Wood
Executive Editor of Digital Media

Graham Wood is Executive Editor of Digital Media for REALTOR® Magazine. He can be reached at gwood@nar.realtor.