Edification and explanation were recently delivered by Florida’s First District Court of Appeal. An interesting challenge was brought before it regarding the use of pot. According to WCJB20 in Gainesville, a correctional officer was subjected to a random drug test, and tested positive for pot use. It was mistakenly reported by America's fourth estate that this was subject to a prescription, and the word "medicinal" was used.
These mischaracterizations are not new, nor isolated. They have been discussed here many times previously. Marijuana May be a Problem (January 2016), Mischaracterizing Pot Again (February 2020), and Federal Law Matters in Main (June 2018). The failure of words is vexing. Marijuana is not legal.
People who break into the homes of others are not "uninvited guests."
People who steal from you are not "unapproved recipients."
The vernacular can matter. Refusing to call things what they really are can lead to misunderstandings and emotions. Perhaps not to those whose education, experience, and sophistication are in the stratosphere somewhere. But to the common folks like you and me, words matter.
We are all likely to take words at their common expected meaning. Potentially, the news might insist on telling us that kidnapping is "legal" instead of informing us the more truthful posture that the state is simply no longer prosecuting kidnapping (not true, an illustration). In that, the news picks its words. Pot is not legal (neither is kidnapping, and the state will prosecute that).
No, people who kidnap others will not be "exercising involuntary presence." They will be kidnappers. Even if the state would decide to decline to prosecute that, it will still be kidnapping. Kidnapping is against the law, federal law, Supremacy Clause; you have heard it all before. Can you imagine, even for a moment, a defendant in court arguing that an arrest for kidnapping is inappropriate because the state has expressly said it will not prosecute it?
To be clear, marijuana is not legal in a single one of the United States. Several have decriminalized it (said they will not prosecute it). The federal government has likewise said it will not prosecute pot possession. In fact, Congress has made it impractical for federal law enforcement to actually enforce the laws against pot. Some see hypocrisy in this. There is confusion and confoundment. People are led to believe they have a prescription (they don't) and that pot is "legal" (it's not).
To be clear, there is no medical malady or condition, for which marijuana is accepted as a treatment. For clarity, no physician will prescribe marijuana. These topics of all been covered before. These remain true even when a state has decriminalized pot under state law.
Who is the beneficiary of the decisions not to prosecute? There are many. Pot is being openly farmed, harvested, packaged, and sold. There are pot stores in every town it seems. And to the public it most certainly seems like pot is legal. If it were not, wouldn't a rational person expect that prosecutions would occur? But, if it were legal, might we expect it to be dispensed by the drugstore pharmacy like all the other legal drugs? Is there any other legal "treatment" that you cannot get at the local drugstore?
Congress has intentionally precluded the enforcement of federal law by federal law enforcement. With a wink or nod, Congress nonetheless requires recipients of federal funds, in many instances, to maintain drug-free workplaces. And those drug-free workplaces must remain free of dope. That is because it is illegal. There are other laws that preclude possession of a weapon by drug users. Hunter Biden just escaped a charge related to a weapon. That is not to suggest that the outcome would be the same for an ordinary American.
In the current iteration of the conflict, an upstanding employee has been terminated for using pot. Not using pot at the workplace. Simply using pot. This employee is not alone, and the examples of this are too frequent. Largely, the news media is to blame. It is the news media that insists upon referring to "legalized" pot and "prescription" pot and suggesting, through ignorance or design, the absence of constraint or potential detriment.
Those representations are misleading and informative. They reinforce the perception of acceptability that is created by a pot store in every town. What person would not see all those pot stores as evidence of acceptability?
But, that tie to federal money means "drug-free," and employees have to remember that drug-free includes pot. Pot is illegal. If you are subjected to a drug test, and it demonstrates pot, you are likely to be terminated. Did I mention pot is illegal?
That said, there are perhaps some employers that play fast and loose with such requirements. I heard a hearsay story recently of a facility that allegedly provides employees notice of testing. They are said to give 30 days' notice of when tests will be administered. That way, the employee knows to abstain from pot use for thirty days and can hope for a clean test. There are scientific challenges to that.
First, that employer faces potential problems. If an accident occurs involving a pot-using employee, there is every chance that there will be some attempt to cast blame on pot. The employer's practice of providing drug test warnings might come into play. The employer is perhaps taking a risk by providing such notice. Furthermore, warnings may not shelter the "daily user." Healthline notes "the cannabis detection windows depend on how much you smoke or ingest, as well as how often."
Some of the very lawyers that will sue an employer to challenge its pot policy, drug testing, and employee terminations will just as readily sue the employer when there is an accident or incident that can be blamed on drug use. There is a desire to make workplaces safe and there is an interest in employees having their rights and privacy, particularly off-the-clock. These are competing interests and balance of any description may lead inexorably to litigation.
None of this is news in the legal profession. For almost ten years we have known that pot use is illegal. We have seen courts across the country enforce federal law. We have seen people lose jobs over their pot use. See, So Federal Law Matters in Colorado (June 2015). The news, WCJB20, did not mention that decision in discussing the current dispute last fall.
And, the case outcome did not make the headlines when the Court rendered its decision on June 21, 2023. The Court affirmed the administrative order that denied the worker's appeal of his termination. The Court reiterates the key points:
- "there are no valid prescriptions for marijuana"
- "mere possession of marijuana is a felony under federal law"
- "Although he can legally possess and use medicinal marijuana under state law, his use of it is illegal under federal law"
- As a user of pot, the employee "cannot lawfully possess a firearm."
- Each time he possesses a firearm as a correctional officer, because of his pot use, "he is committing a felony."
- Therefore "his termination was lawful"
The public would be served to see that in the headlines. They would benefit from knowing that pot is not legal, that they can lose a job, and that their investment in legal challenges may be fruitless. The ordinary, everyday people, like you and me, should hear this. The use of pot presents significant challenges and threats to them as employees. But that will not be reported. It won't be the headline. And we are left to wonder why.
