Complaining of Secondhand Pot Smoke: Protected Concerted Activity or Terminable Offense?

A carpenter hired by Circus Circus Casinos in Las Vegas to work on guest rooms complained during a safety meeting that workers were exposed to secondhand marijuana smoke while performing work in rooms and he was concerned that this exposure could cause a positive drug test. The carpenter was later discharged for another reason and filed an unfair labor practice charge over the discharge, alleging that the discharge was because of his concern about secondhand pot smoke. Let us suspend our cynicism that the carpenter is really just preemptively defending why he will fail a test in the future because of his own recreational drug use.

The Administrative Law Judge determined that the comment was protected concerted activity. The comment was raised during a safety meeting and another employee tangentially concurred that he, too, was concerned. The questioning carpenter agreed to take a drug test “on the spot” to prove his concern was for secondhand smoke instead of his own drug use. The decision to terminate the employee for refusing to be fitted for a respirator mask (which would prevent him from inhaling secondhand smoke) was, according to the ALJ, pretextual, and the employee was reinstated to his previous job and awarded back pay.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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