Use of medical marijuana is legal in more than two dozen states and the District of Columbia. A handful of states—including Colorado, Washington, Massachusetts, Oregon, Nevada, Maine, Alaska, and California—also allow recreational use. At the same time, many employers have zero-tolerance drug policies.
Marijuana is different from alcohol. It can be detected in the body for weeks after it has been used. An employee could use it on the weekend and still test positive at work the next week, even when he or she is no longer impaired. This raises some interesting questions, particularly about whether employers can fire employees for using marijuana legally while off duty.
Was the Drug Testing Legal?
The first question to ask is whether the employer conducted the drug test legally. Except for federal government employers and employers receiving federal funding, federal law does not regulate drug testing by private employers. However, many states have laws addressing whether and how employers can conduct drug tests.
Many employers screen for the use of drugs, including marijuana, as part of the pre-employment process. State laws generally give employers the right to drug test applicants as a condition of employment. However, the rules for testing current employees is often more restrictive.
In some states, random drug testing of current employees is allowed. However, in other states, employers may only test employees in certain circumstances. For example, many states allow employers to test when:
- there is reason to believe an employee is under the influence of drugs at work
- the employee holds a position that could threaten the safety of the public or coworkers
- an employee is involved in an accident that causes physical harm or property damage
- as part of an a fitness-for-duty medical examination, or
- after an employee completes a drug rehabilitation program.
Many states also have rules about how the drug test is performed. For example, in many states—including Rhode Island and Florida—an employer must give the employee a copy of the drug test results and an opportunity to challenge a positive result (by explaining the results or by having the sample rested).
The right to use marijuana legally under state law does not necessarily guarantee job protection for exercising that right. Unless your state’s marijuana law specifically prohibits your employer from firing you for off duty marijuana use, you won’t be protected. So far, a handful of states grant employees such protection, but only for medical marijuana use.
Some states, such as Arizona and Delaware, have passed laws that restrict employers from firing medical marijuana users unless they are shown to be impaired on the job. If you have a prescription for medical marijuana in these states, your employer cannot fire you for off duty use that does not affect your work.
However, many states with medical marijuana laws do not specifically address the employment context. In these states, employees typically are not protected from being terminated for legal medical marijuana use. Courts in California, Colorado, Oregon, and Washington have upheld an employer’s right to terminate a current employee who tests positive for marijuana, even when the employee had a valid prescription and only used marijuana while off duty. In arriving at this decision, many state courts relied on the fact that marijuana is still illegal under federal law.
In Colorado, for example, the state Supreme Court upheld the firing of a quadriplegic man with an outstanding work record due to off-the-job medical marijuana use. Because Colorado’s medical marijuana law does not provide employment protections, the employee argued that he was protected under the state’s off-duty conduct law. Colorado’s off-duty conduct law prohibits employers from disciplining or firing workers for engaging in legal activities outside of work. The employee argued that his use of medical marijuana was legal under state law and should therefore be protected. The court disagreed, holding that medical marijuana use was not a protected lawful activity because it is still illegal under federal law.
Recreational marijuana laws are still relatively new, but more states are considering and passing these types of laws each year. However, these laws generally do not protect employees from being fired for legal, off-duty recreational use. Many state laws expressly state that they are not intended to interfere with an employer’s ability to enforce zero tolerance drug policies. For example, California’s recreational marijuana law states that employers are allowed to continue to test employees and applicants for marijuana and maintain a drug-free workplace.
What about the ADA?
The Americans with Disabilities Act is a federal law that requires employers to provide reasonable accommodations to qualified employees with a disability. However, the ADA does not require employers to accommodate illegal drug use. While medical marijuana is legal in many states, it is still illegal under federal law. As a result, employees who use medical marijuana for a disability are likely not entitled to accommodation under the ADA.
Call an Employment Lawyer
The issues surrounding an employer’s right to fire a worker for legal use of marijuana are complicated. Plus, the laws in each state are unique. If you were fired after testing positive for marijuana on a drug test, you should consult with an employment lawyer. A lawyer can tell you if your employer violated the law by firing you or by drug testing you in the first place.