With more people using medical marijuana today than ever before, the question many have is: can you be fired for using medical marijuana? It’s a tricky issue. Whether you can be fired depends on where you live, and who you work for.
There are people with medical conditions that require them to take medication: people living with cancer, epilepsy, chronic pain, anxiety, depression, PTSD and other health conditions are often unable to work without taking prescribed medicines.
Certain prescribed medications can cause drowsiness, a foggy brain, and in the case of some pain medications or benzodiazepines, even intoxication or the feeling of being high. This can also be the case with medical cannabis, which is concerning to some employers.
But what about when you’re not on the job? If you indulge in medical marijuana when you are home at night or on the weekends, can you be fired from a job because THC remains in the bloodstream even after its effects have worn off?
Can You Use Medical Marijuana And Keep Your Job Safe?
Since medical marijuana has been legalized in one form or another in 36 states, there are 19 states thus far that have protections in place for those that use it: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Vermont, and West Virginia. In these states, the law prohibits an employer from discriminating against workers simply because they test positive for marijuana.
However, these protections do not mean that you can show up to work under the influence of marijuana. A drug test that comes back positive does not necessarily mean that an employee is impaired on the job. In New Jersey, the law allows an employee, or even a job applicant, to present a medical reason for a positive drug test. In the state of Maine, even adult-use, a.k.a. recreational marijuana is protected. Nevada and New York City passed laws that ban denying a job to an applicant based on a positive drug test for marijuana, whether it is from recreational use or medical use.
In DC, the city council approved protection for employees that use medical marijuana, but the law needs to be approved by Congress. The mayor of DC declared an order that protects all cannabis users in the District. States that have protection laws concerning marijuana use may exempt an employer that must follow federal drug-testing laws.
Why Can An Employer Fire You For Medical Marijuana Use?
Although some states prohibit being fired from a job because of medical marijuana use, other states that have legalized medical marijuana may not have any employee protections in place. Even with a state card or certificate to use medical marijuana legally, the risk of being fired may still be a possibility in states where an employer retains the right to terminate an employee because of a positive drug test. Many places of employment have a zero-tolerance drug policy, which can include medical marijuana.
Until recently, courts have been finding in favor of employers in states with no clear directive. Unless a state has laws in place to protect those using medical marijuana from being fired, the laws can be unclear. Until the United States Congress or the Supreme Court takes up the issue, federal law on the subject will remain murky, except in those states that have already taken their own action.
Do Employers Have The Right To Drug Test?
A possible loophole for a positive drug test is whether or not the employer has the legal right to test you. Most employers have the right to screen a job applicant for drugs before hiring them, but they may not have the right for further testing except under specific circumstances.
The Drug-Free Workplace Act of 1988 states that any organization receiving a federal contract of $100,000 or more, or any organization receiving a federal grant, must have a drug-free workplace policy. Employers not affiliated with the federal government may choose to not have drug-free policies. Chances are, if you work for a large business, especially where there could be job hazards, there is likely a drug-free policy for that company. Most companies will make it very clear at the time you are hired what drug issues may or may not be tolerated.
Can You Be Randomly Drug Tested?
There are some constraints for testing employees in most private employment jobs. In some states, companies are not allowed to blanket test all employees, or conduct random drug tests. The testing must be focused on individuals that the employer had a good reason to believe the employee is using drugs, or that the person’s job has a high risk of injury if they are impaired.
Courts have sometimes ruled when an employee is involved in an accident while on the job that the employer can drug test if the employee appeared to be impaired at the time. If an employee mishandles a piece of work equipment that caused or could have caused injury to themselves or someone else, this could be a legitimate reason to conduct a drug test. If an employee appears to be incoherent, can’t respond reasonably, and they have no known medical condition that would cause it, they could be drug tested.
If another employee reports seeing you smoking a joint on your lunch break, or if you smell strongly of marijuana when you come in to work, an employer could argue that it was reasonable to assume you were high and ask for a drug test.
Can You Fight Termination Due To Medical Marijuana Use?
It is always possible to get a lawyer and fight it out in court if you think you have been wrongfully fired because of medical marijuana use or any other medication prescribed by your doctor. It does not mean you will win the battle, but the more people that do take legal action, means the more the issue is pushed forward, hopefully towards there being federal law that protects all medical cannabis patients.
If you are lucky enough to live in one of the states that have protections in place for employees that use medical marijuana, then your chances of winning your case might be positive. If you’re going to court to fight unfair termination for medical cannabis use, you may want to seek legal advice. Start with the National Organization for the Reform of Marijuana Laws, or NORML.
The NORML Legal Committee (NLC) is composed of top-notch criminal defense lawyers who regularly defend individuals charged with marijuana offenses, and they frequently provide pro bono assistance in important or unusual cases which may set favorable legal precedent or otherwise impact public policy. NORML lawyers have won many victories in the fight to legalize marijuana for all adults.