So far, 22 states have legalized the use of marijuana,
either for medical or recreational use.
The legalization of a once-banned substance can create confusion in the
employment context. Does legalization protect employees from adverse employment
action based on legal use?
Marijuana is still illegal under federal law. Although this area of law is not yet fully
developed, some federal courts have already determined that certain federal
laws, such
as the Americans with Disabilities Act (ADA), do not protect legal marijuana
users.
Even though federal laws may not apply, states have
enacted laws that prohibit employers from taking adverse employment actions
against legal marijuana users. Some
states have laws protecting against adverse employment actions based on an
employee’s use of lawful products or medically prescribed substances. While
other states (Arizona,
for example) have included express language in their marijuana legalization
laws prohibiting discrimination against legal marijuana users. In states with
such protections, employers may not rely on an employee’s legal use of marijuana
as a basis for termination or other adverse employment action.
In the absence of laws specifically protecting employees,
the fact that marijuana use is legal in a state may not prohibit that state’s
employers from taking adverse employment action based on marijuana use. In Roe v. TeleTech Customer Care Management, a Washington state court upheld an
employer’s decision to terminate an employee for her off-duty use of
doctor-prescribed medical marijuana in violation of the employer’s drug
policy. Even though the employee’s
marijuana use was allowed by Washington law, the court determined that the
wording of the legalization statute neither prevented an employer from firing
an employee for marijuana use nor supported a cause of action for wrongful
termination.
Employers in states which have legalized marijuana use
should be aware that legalization may affect their ability to take adverse
employment actions against marijuana users. They should revisit their drug use
and drug testing policies to ensure that they conform to the new, more
marijuana-friendly landscape.
