Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, November 9, 2012

Legal Marijuana Use Can Still Get You Fired

Now that two states have legalized marijuana altogether and another has decided to allow it for medical purposes, you may be thinking you can finally have the occasional toke if you're in one of the lucky states. But don't bogart that joint just yet.

Marijuana use is still illegal under federal law. That includes medical marijuana use. Even if you have a disability that is protected under the Americans With Disabilities Act, the feds say too bad.

How does this affect your job?

If you use marijuana and your company finds out about it (or you're near someone who smokes and test positive due to secondhand smoke), you can still be fired.

Drug testing: In a recent case, the Washington Supreme Court ruled that their state law doesn't keep employers from drug testing employees and firing them for positive results. Same with a recent case in Michigan against Wal-Mart.

State laws against discrimination: Some states have made discrimination against medical marijuana users illegal. Connecticut, Arizona, Rhode Island, Maine, Colorado and New York all have prohibitions against workplace discrimination regarding medical marijuana users. Other states prohibit licensing and disciplinary boards from penalizing medical marijuana users. Even those states that prohibit discrimination based on marijuana use have exceptions to those legal protections, so be careful to make sure you are legally protected before you light up.

State off-duty activities laws: Some states prohibit termination/discrimination based upon an employee's lawful activities off-duty. These states include California and Colorado, so employers will need to be careful not to violate other related laws as marijuana becomes legal. Other states prohibit discrimination against employees for use of "lawful consumable products" such as tobacco, so the same laws will likely protect marijuana users as it becomes legal in those states.

Americans With Disabilities Act: Although many politicians pound tables yelling about "states' rights," the federal laws and courts still don't recognize the state laws making marijuana use legal. So far, courts have not recognized medical marijuana use as a reasonable accommodation under the Americans With Disabilities Act. More importantly, even though you might not end up in state prison, the feds can still prosecute you for marijuana, so be careful.

While the clear trend is to legalize marijuana, opening up a huge new tax base, eliminating the huge waste of resources spent on prosecuting marijuana cases, and giving relief to severely ill patients, the fact is that you may still be able to be fired for using marijuana even for medical purposes while not at work. The times are changing, but it will take a while for the employment laws to catch up with this important legal trend.


  1. Thanks for covering this issue in a serious way. It's all too often dismissed with jokes or giggles, when it fact it gets at some pretty core issues of privacy and civil liberties.

    1. I'm glad you enjoyed it Alison. This is going to be a big employment law issue over the next decade or so, until the feds catch up and decide to recognize what the states are doing. I predict that within the next 15 years, it will be completely legal. HR folks need to keep up with this important issue, which will be changing quickly.

    2. I totally agree with you both on this issue and I am also glad like Alison, that this issue has been covered in a more meaningful way, and not as if it were a joking matter! Thank you for being so informative on this issue and thank you for posting Donna! Best wishes, vaporizer ,)

    3. Thanks vaporizers! I'm glad you enjoyed it.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.