The topic of weed at work has picked up steam as cannabis laws continue to loosen (yes, even in Texas). But before you assume that working high is A-OK, we’re going to burst your bubble: It’s generally not. Nor will it be in the future, no matter what state and federal laws are passed to decriminalize the substance.
Here’s the low-down on weed at work in Texas:
Texas Cannabis Laws
In the past few years in Texas, it seems hell is freezing over, and pigs are starting to fly. Why? Because marijuana is very close to being legalized.
The embattled history of marijuana in Texas began in 1915 when El Paso became the first American city to restrict cannabis. By 1931, possessing any amount of marijuana became a felony in Texas, punishable by up to life in prison. Punishment for possessing small amounts was eased a bit in 1973, but, for the most part, the criminalization of marijuana remained unchanged in the Lone Star State until recent years. In 2015, the Texas Compassionate Use Act began paving the way for the medical use of marijuana, and in 2019, the cultivation and sale of hemp were legalized in Texas. For more on the history of marijuana legislation in Texas, check out this KVUE story.
As of September 2021, Texans with any form of cancer or post-traumatic stress disorder (PTSD) are included in the Texas Compassionate Use Program. The maximum THC levels allowed in low-THC cannabis products have increased from .5% to 1% by weight (still far lower than most states with similar laws). That puts the number of Texans eligible for compassionate use at a modest 2 million.
But decriminalization is happening quickly. The U.S. House passed a bill in March that would decriminalize marijuana nationwide. Austin voters are currently deciding whether to formally back up Austin police’s decision to no longer cite or arrest people for possessing small amounts of marijuana. Both top candidates for governor of Texas—Gov. Greg Abbott and Beto O’Rourke—agree that at least some level of decriminalizing of possessing small amounts of marijuana is overdue.
So, Is Weed at Work OK?
Where does that leave us with working high? First of all, you need to follow the law. As of April 2022, the only Texas workers who can legally consider such a scenario have been diagnosed with epilepsy or another seizure disorder, multiple sclerosis, spasticity, amyotrophic lateral sclerosis, autism, cancer, PTSD, or an incurable neurodegenerative disease. These patients are still only allowed low-THC cannabis dispensed by very specifically licensed dispensaries.
So, at the moment, not even compassionate-use Texas workers are allowed enough THC-containing cannabis to feel high at work (realistically). Therefore, if you are caught noticeably working high, you could be in hot water. That will not change.
“Even in states in which marijuana is legal, there are restrictions when it comes to workplace safety,” we’ve written previously. “In most jurisdictions, discriminating against someone who uses marijuana even for medicinal reasons is a moot point when the drug inhibits work performance. Plus, organizations with federal grants, large government contracts, or safety-sensitive transportation employees must maintain a drug-free workplace in accordance with the Drug-Free Workplace Act of 1988.”
What About Outside of Work?
So weed at work and working high won’t fly, but what about using THC-containing products outside of work? What if it shows up on a drug test or you’re spotted out-and-about or on social media getting high?
As this SHRM article points out, even low levels of THC stay in the body for days or weeks, and frequent use over time may cause a positive drug test result for marijuana. Experts at Any Lab Test Now say they’re seeing a growing number of pre-employment drug tests coming back red-flagged for THC even though the people being tested claim to only be taking store-bought CBD. Quest Diagnostics reports that positive drug tests in 2021 soared to their highest level in two decades, with positivity rates for marijuana in the general U.S. workforce rising 8.3% from the year before.
Texas remains an at-will work state, and there are no employment protections in place for those outside the compassionate-use definition. That being said, a Texas case from 2017 set interesting precedence in these changing times. A Texas high school teacher nearly lost her license after a hair test in 2015 found she had consumed marijuana in the past six months. However, the teacher testified that the marijuana consumption took place while she was on vacation in Colorado, where recreational use was (and still is) legal.
Administrative Law Judge William G. Newchurch ruled in favor of the teacher, stating, “possession of a usable quantity of marijuana is a criminal offense in Texas but so is gambling…[I] would not recommend that the Board find a teacher unworthy to instruct in Texas because she legally gambled in Nevada. Similarly, [I do] not recommend that the Board find Respondent unworthy to instruct because she legally consumed marijuana in Colorado.”
Drug testing is perfectly legal in Texas if it’s not done in a way that singles out suspected workers (which is what was also alleged in the teacher’s case). That being said, many employers are relaxing their drug testing policies for obvious reasons: They need workers. And with so many states now fully legalizing the recreational use of marijuana, drug testing remote employees and even employees who have traveled to marijuana-friendly states before testing can complicate hiring and retention.
So, fired for having weed at work or working high? That’s a situation that’s difficult to argue. But testing positive for THC or being suspected of using marijuana or cannabis products when your behavior hasn’t deviated from state law MAY be a different story.
In an at-will state like Texas, you can generally be fired for any legitimate reason (although states can vary on what “legitimate” reasons could be). In Texas, your conduct outside of work could be grounds for termination, particularly if your behavior (in this case, using marijuana or cannabis products) is viewed as contrary to the employer’s moral values or code of conduct. Similar behaviors can include drinking/partying too much on the weekends or displaying inappropriate social media activity.
If you qualify for compassionate use, you might consider requesting accommodations from your employer. For everyone else, before you consume THC-containing products legally (meaning, while visiting a state or country where it’s legal), consider your employer’s drug testing policy as well as any codes of conduct that you agreed to when you were hired. If you’re on the job hunt, pay close attention to these policies and be mindful of choosing an employer that shares your values. Don’t leave it to chance.
