Find the right lawyer now

Termination of Employees Who Use Medical Marijuana

Find a Local Criminal Defense Lawyer near You

Can I Be Fired for Illegal Drug Use?

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.

Can Employees Who Use Medical Marijuana Be Terminated?

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:

  • Glaucoma
  • 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.

Should Employees Pursue Their Claims in Court?

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.

Seeking Legal Help

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.

Photo of page author Matthew Izzi

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 06-24-2018 07:49 PM PDT

Law Library Disclaimer
  • No fee to present your case
  • Choose from lawyers in your area
  • A 100% confidential service
What is LegalMatch?

We've helped more than 4 million clients find the right lawyer – for free. Present your case online in minutes. LegalMatch matches you to pre-screened lawyers in your city or county based on the specifics of your case. Within 24 hours experienced local lawyers review it and evaluate if you have a solid case. If so, attorneys respond with an offer to represent you that includes a full attorney profile with details on their fee structure, background, and ratings by other LegalMatch users so you can decide if they're the right lawyer for you.