Currently, over 20 U.S. states, the District of Columbia, and even the federal government have laws that prohibit discrimination in employment. These laws usually prohibit discrimination on the basis of things like race, religion, sex, and disability. However, the vast majority of American jurisdictions allow an employer to fire an employee for using illegal drugs. They also usually allow employers to conduct drug tests.
Some states have legalized the use of marijuana for medical purposes, while a growing number of states have legalized it for recreational use. This increased decriminalization raises the question of whether employers in those states are allowed to fire someone who uses marijuana for medical reasons.
A special focus is given to laws prohibiting discrimination based on disability. These laws require employers to make “reasonable accommodations” for disabled employees to enable them to do the job. Generally, medical marijuana is prescribed for:
- Muscle Spasms
- Side effects of cancer treatment
- Chronic seizures
- Crohn’s disease
- Nerve pain
Therefore, it could be argued that any condition for which the use of marijuana is indicated constitutes a disability, and that an exception to the employer’s anti-drug policy such be made in such cases would be a “reasonable accommodation.” Essentially, since marijuana is still illegal under federal law, and has a potential for abuse, requiring employers to modify their drug policies is not seen as a “reasonable accommodation.”
A 2012, a Michigan case against Wal-Mart reached a similar conclusion. The Sixth Circuit held that medical marijuana users are not a protected class like race or religion, and that the medical marijuana laws of Michigan only applied to state and local governments, not private employers. It is worth noting that the law also allows private employers to have a “zero tolerance” policy for those who test positive for marijuana, even in states where it is approved for recreational use.
The law is always changing. Different judges, different arguments, or even higher courts can overturn or make exceptions to existing law.
State court decisions are limited to the state or circuit the court is in. A California court decision has no power over a New York state court. Plaintiffs outside the court’s jurisdictions can bring a similar case and reach a different outcome.
Many of these cases are limited to specific situations. The Sixth Circuit limited their ruling to private employers, so an employee working for a public entity could still be protected by medical marijuana laws. But in California, the State Supreme Court stated that the marijuana statute does not give direction as to California employment law. So if a wrongful termination claim, based on use of marijuana, is to survive the State’s marijuana law should explicitly cover what steps a wrongfully terminated employee should take.
If you have been terminated over the results of a positive drug test, it may be helpful to discuss your situation with a qualified employment lawyer who handles wrongful termination issues. They may help you contest the results of the test itself, or pursue other remedies such as litigation if necessary.