roommate's drug use

Colorado-
I'm in HR and have an employee who was in an accident and had to be drug tested per company policy. He stated that his roommate smokes pot, and the second hand smoke may show on his drug screen. His test results were clean. But my boss wants to terminate him for "admittedly being in the presence of illegal activity." My stance is that we can't hold him accountable for his roommate's actions- our employee passed his drug screen, that should be enough. Who's right? Is there something I can prove it with?
Thanks!!

But my boss wants to terminate him for "admittedly being in the presence of illegal activity."

How is his room mate responsible for that?

dianagsars said:

Colorado-
I'm in HR and have an employee who was in an accident and had to be drug tested per company policy. He stated that his roommate smokes pot, and the second hand smoke may show on his drug screen. His test results were clean. But my boss wants to terminate him for "admittedly being in the presence of illegal activity." My stance is that we can't hold him accountable for his roommate's actions- our employee passed his drug screen, that should be enough. Who's right? Is there something I can prove it with?
Thanks!!

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It's not a matter of who is right. There isn't a law in Colorado that supports your stance. Being an at-will employee, they can be terminated for anything not prohibited by law and this isn't one of them.

But my boss wants to terminate him for "admittedly being in the presence of illegal activity." Well, that's just stupid and I hope your boss relents. That's like holding someone accountable for being on the freeway when someone speeds by at 90mph. I agree with you but if the boss insists on terminating this employee, there's no legal basis for you to prevent it.

Well, that's just stupid and I hope your boss relents. That's like holding someone accountable for being on the freeway when someone speeds by at 90mph. I agree with you but if the boss insists on terminating this employee, there's no legal basis for you to prevent

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No, it's not the same thing. By being in a place where he is aware there are drugs, the employee is in possession of those drugs even though he doesn't own them. The employee is actively committing a crime. When someone drives by at 90 miles an hour, there is no connection to you at all.

By not calling the police, the employee tacitly agreed to criminal conduct by his roommate.

tranquility said:

No, it's not the same thing. By being in a place where he is aware there are drugs, the employee is in possession of those drugs even though he doesn't own them. The employee is actively committing a crime. When someone drives by at 90 miles an hour, there is no connection to you at all.

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Lol not quite....

In most cases, it is not the job of the employer to play Matlock and figure out how the drugs got into his system.

If they were in his system, he is responsible for them.

The man he is talking about did NOT have drugs in his system! He passed the drug test.

swrdmbo said:

The man he is talking about did NOT have drugs in his system! He passed the drug test.

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You are right the person passed the drug test, but he did admit to living where their use is prevalent.

At the end of the day, the person made a bad choice by making that admission. His state is an "at will" state. I would be uncomfortable having an employee who lives where drugs are used. I would say times are tough, business is slow. Thank you for working for me, here is your final paycheck. Have a nice life.

To the statement:

By being in a place where he is aware there are drugs, the employee is in possession of those drugs even though he doesn't own them.

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Crazed98 opined:

Lol not quite....

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While I agree that my answer is truly "not quite", in that there are many facts missing and case law does have some variance, would you care to educate us on what you mean? In a shared accomodation where a person has knowledge of drugs and is worried he is so interactive with them that a drug screen may test positive, I'm thinking we have the bare minimum of the act and the mental state required for possession.

Sure, if roommate locks himself in his room to toke and then locks the door behind him as he leaves his stash and goes to the 7-11 for some munchies, assuredly not. But, if he comes out to the kitchen table and smokes and leaves the stash in a place accessable to the OP, clearly so. Where the actual facts fall in this case to determine control would be for a judge or jury to decide.

Or, did your useless LOL envision something else?