Can You Be Fired for Using Legal Marijuana?
Use of medical marijuana is legal in 18 states and the District of Columbia. Colorado and Washington 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.
Pre-employment Drug Testing
Many employers screen for the use of drugs, including marijuana, as part of the pre-employment process. They do this to maintain a safe work environment and it is within their rights.
In a precedent-setting case in Washington state, a company made a job offer to an applicant contingent on a drug test. When the applicant tested positive for marijuana, he was terminated from training and denied further employment. He sued claiming wrongful termination and violation of the state’s public policy allowing medical marijuana use.
The Washington Supreme Court held that the law provides an affirmative defense against criminal or civil prosecution for medical marijuana use under state law, but it does not contain a private cause of action of applicants or employees against their employers.
Drug Testing for Current Employees
Many employers test their current employees for drug use, either randomly or after a triggering incident. Courts in California, Colorado, Montana, Oregon and Washington have upheld an employer’s right to terminate a current employee who tests positive for marijuana, even with no impairment.
Arizona, Connecticut, Delaware, Maine and Rhode Island have passed laws that restrict the firing of medical marijuana users unless they area shown to have been impaired on the job.
In spite of the laws passed by many states, marijuana use (including medical marijuana use) remains illegal under federal law. In arriving at their decisions, the state courts relied in part on federal preemption of state laws.
A Colorado Example
In Colorado, where medicinal and recreational use are both legal, the court of appeals in 2013 upheld the firing of a quadriplegic man with an outstanding work record for off-the-job medical marijuana use. The court concluded that, because marijuana is illegal under federal law, employees have no protection to use it any time.
In addition, the court ruled that marijuana use is not protected by Colorado’s Lawful Off-Duty Activities Statute, which prohibits employers from taking disciplinary action against workers for legal, off-duty activities. The decision is being appealed to the Colorado Supreme Court.
What about the ADA?
The Americans with Disabilities Act and state disability laws require that employers provide reasonable accommodations for qualified employees with a disability. This law does not apply to use of medical marijuana. The ADA is a federal law, and marijuana is illegal under federal law. Use of medical marijuana is also explicitly excluded in the disability laws of some states.