Use of medical marijuana is legal in more than 30 states and the District of Columbia. A number 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.
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:
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 re-tested).
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 probably won’t be protected. So far, several states grant employees such protection, but typically only for medical marijuana use.
Several states with medical marijuana laws—including Illinois, 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, several other states with medical marijuana laws either specifically allow employers to fire employees for off-duty use or do not address the issue. In the states without a clear directive, courts had been finding in favor of the employer—until recently.
In 2015 in Colorado, the state Supreme Court upheld the firing of a quadriplegic man who tested positive for marijuana on a drug test due to off-the-job use. But more recent cases, including in Rhode Island's state Supreme Court and in federal courts in Connecticut and Massachusetts, have reversed this trend by ruling in favor of employees who used medical marijuana.
Until Congress or the U.S. Supreme Court address this issue, the law will remain in a state of uncertainty. Check your state's laws or ask for the advice of an employment lawyer if you've been fired or disciplined for using medical marijuana.
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.
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.
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.