As of October 2015, 23 states have legalized marijuana for medical use, and 4 states have legalized marijuana for recreational use. Despite each individual state law and some acts to decriminalize the usage of marijuana, marijuana still remains a Schedule 1 narcotic under the Federal Controlled Substance Act (21 U.S.C. 801-971). Under federal law, possession of marijuana, even medical marijuana, is unlawful. If your business is located in one of the states that allows either medical or recreational marijuana, it is still legal to terminate an employee for using marijuana.
In California, medical marijuana has been legal since 1996 (The Compassionate Use Act of 1996), and it was the first state to legalize the use of medical marijuana. In 2008, an employee was terminated by their employer for failing a drug test. This employee then sued for wrongful termination, discrimination, and a breach of contract (Ross v. Raging Wire Telecommunications). He alleged that he used prescription marijuana for chronic back pain under the Compassionate Use Act of 1996, which triggered his failed drug test.
This case was taken to the California Supreme Court, which upheld the termination. They claimed that the Compassionate Use Act “does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug.” The Supreme Court also held the opinion that since marijuana is illegal under federal law, an employer is not required to accommodate marijuana use at the workplace or the employee’s home. Therefore, medical marijuana users are not entitled to protection from discrimination under the ADA.
Similarly in Colorado, Brandon Coats, a quadriplegic, was terminated by the national company, Dish Network for failing a drug test. Marijuana has been legal for medical use in Colorado since 2000, and legal for recreational use since Amendment 64 was passed in 2012. Brandon Coats had a doctor’s authorization for medical marijuana, and insisted that he did not use marijuana or was under the influence of the drug while at work, which Dish Network did not dispute. Regardless of his use in a private location, Dish Network has a zero-tolerance policy for drugs, and even though medical marijuana is legal in Colorado, it is still illegal on the federal level which makes the termination of Coats legal.
Under the Americans with Disabilities Act, a person who uses illegal drugs is not a qualified as a protected individual under the ADA. However, under the ADA illegal drug use does not include the use of drugs “taken under supervision by a licensed health professional,” which medical marijuana requires a prescription from a licensed health professional.
How to protect yourself as an employer?
· Proclaim the workplace to be a drug-free environment and include the policy in the employee handbook.
· Be sure to be compliant with local and state laws when you conduct a drug test.
· Clearly define which circumstances an employee may face a drug test (in accordance to the law).