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Medical Marijuana Use and Employment Issues

By Christopher Coble, Esq. on March 25, 2016 | Last updated on March 21, 2019

A total of 39 states allow patients to use medical marijuana in some form or another, but the laws from state to state can vary significantly. Four states and the District of Columbia have fully legalized cannabis, while ten states only permit non-psychoactive cannabidiol. And that says nothing about the federal government's current prohibition on marijuana entirely, coupled with its hands-off approach to state decriminalization efforts.

All of this leaves medical marijuana users in a legally precarious position vis-a-vis their employers. Does a doctor's prescription or state law protect you from being fired if you use marijuana legally?

No State Toking Protections

I don't mean to harsh your mellow, but if you get fired for using marijuana -- even medical, even legally -- you have almost no legal recourse. The seminal case on this topic, so far, was decided in Colorado last year, and it had as sympathetic a plaintiff as you could possibly get, and he still lost.

Brandon Coats is quadriplegic and suffers from violent muscle spasms. He lived in Colorado, where marijuana is fully legalized. He used medical marijuana to treat his muscle spasms, off-duty, and never went to work stoned or high. Colorado even has a Lawful Off-Duty Activities Statute that reads: "It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours."

Still, Comcast fired him when he failed a drug test, and the Colorado Supreme Court allowed it, saying, "employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute." If Mr. Coats can be fired for using medical marijuana, it would seem that anyone can.

Nor From the Feds

And you may not get much help from the federal government either. Marijuana remains a Schedule 1 drug under the Controlled Substances Act, and therefore prohibited under federal law. So if you were hoping to use the Americans With Disabilities Act (ADA) as protection for medical marijuana treatment, you're out of luck. The Ninth Circuit (covering two states with legalized weed and California) already decided that the ADA, a federal law, defines illegal drug use by federal, not state, standards.

If you want to look on the bright side, the law could change. Not all employers are as evil as Comcast. More states are legalizing or relaxing prohibitions on marijuana every day. And, for the most part, if you get a medical marijuana card, your boss may never be the wiser. Just be careful -- if you're using medical marijuana, you're on your own.

If you've been fired for using medical marijuana, or you have more questions about the marijuana laws where you live, you can contact an experienced drug crime attorney near you.

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