By Amy Carst, 
Medical marijuana is now legal in 33 states, as well as the District of Columbia, Guam, and Puerto Rico, though it remains illegal on the federal level. Because of this discrepancy, many employers, including some in those 33 states, have policies specifically banning employee marijuana use, even outside of work hours.
Should You Hire a Lawyer if You Have Been Laid Off or Fired?
If you require medical marijuana for the treatment of a medical condition, it’s important to consider the following:
- Many jurisdictions support the right of an employer to terminate employment following a positive marijuana test, even if the marijuana use occurred during non-working hours.
- If an employee has a valid prescription for medical marijuana, however, the situation becomes much less clear. In certain states, statutes prohibit the termination of an employee who tests positive for marijuana use if the employee holds a valid prescription. Other states allow employers to implement zero tolerance policies, regardless of whether the employee holds a valid prescription.
- With marijuana still being considered an illegal drug under federal law, federal contractors and employees are governed by the federal Drug Free Workplace (DFW) Act. As a result, federal contractors are exempted from any obligation to accommodate the marijuana use of employees in the workplace, even with a valid prescription. The DFW does not, however, regulate the use of drugs outside of work hours.
It should be doubly noted that with the rapid evolution of marijuana laws across the nation, what is illegal today could be legal within weeks or months, and vice versa. If you have been fired due to medical marijuana use, a skilled employment law attorney can help you determine how to proceed.
Employment-related protections, or lack thereof
Unless a state has employment-related protections for medical marijuana usage on the books, employees are still subject to company policies which may explicitly prohibit drug use. But this is changing.
“Workplace policies will have to become more refined to specifically make clear what’s allowed and what is not allowed,” says Mike Delikat, the chair of Orrick’s Global Employment Law Practice and a partner in the firm’s New York office. “Certainly in terms of bringing drugs into the workplace, even if it is a prescription. Companies—especially in Colorado and in those states where recreational use is permitted—are quickly revising their workplace policies to try to make the dividing line clear as to what is acceptable and what is not.”
In a disability discrimination case in Massachusetts, a state which does not have employee protections for marijuana usage, a woman was fired for failing a drug test even though she was a registered medical marijuana user. In 2017, the Massachusetts Supreme Judicial Court ruled that the plaintiff could proceed with her claim in state court. According to the state high court, it is just as lawful to use marijuana for approved medicinal purposes as it is to use other medications. Unless the employee cannot perform essential job functions or is impaired on the job, the employer must provide a reasonable accommodation for the employee’s disability.
Cristina Barbuto, the plaintiff, uses marijuana to manage symptoms of Crohn’s disease, a debilitating gastrointestinal condition. Her employer claimed that using marijuana is a federal crime and providing an accommodation for marijuana use would be facially unreasonable. Fortunately for Barbuto, the court did not agree.
Michael Clarkson and M. Tae Phillips of Ogletree Deakins discuss in an article how that case might influence future decisions around the country. “The decision, which is the outcome of the first medical marijuana case considered by the Massachusetts Supreme Judicial Court, has a potentially far-reaching effect—even outside of Massachusetts,” Clarkson and Phillips write. “Notably, the supreme judicial court became the first appellate court in any jurisdiction to hold that medical marijuana users may assert state law handicap or disability discrimination claims—regardless of whether the state’s medical marijuana statute provides explicit employment protections.”
Nationwide trends
In the past, most state courts have sided with the employer on marijuana issues. But that too could be changing. In April, the American Bar Association wrote about two additional cases with rulings that favored medical marijuana users over their employers. In Rhode Island, the Superior Court decided in favor of a woman who had not been hired on the basis of her medical marijuana usage. In Connecticut, the U.S. District Court ruled in favor of the plaintiff, stating: “a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.”
Like the laws around its usage, the statistics involving medical marijuana are state by state. In one report, medical marijuana use in Illinois increased by 83 percent in 2018, with a reported 46,000 users, according to the Chicago Tribune. Beyond Illinois, the country is seeing more registered users, more planned dispensaries, and more doctors approving of its benefits.
“The evolution on this issue, reflected nationwide, is stunning in its progress,” says Christina Semmer, a California employment attorney and senior associate at Wilson Turner Kosmo. “The fact that Colorado became the first state to legalize recreational adult use in 2012, and now you have ten states plus the District of Columbia that have legal adult-use marijuana, and just this past November, Michigan was the first state in the Midwest to pass legal recreational marijuana. Previously it’s been more on the coastal states, east coast and west coast, and you’re starting to see it trickle more into the Midwest. I think that’s reflecting a nationwide shift in cultural viewpoints with marijuana.”
