Last updated: September 14, 2020
Eight states have now legalized marijuana for medical and recreational use, but that doesn’t mean you should run out to the nearest dispensary and buy some—at least, not if you want to keep your job. Federal courts and state supreme courts have ruled repeatedly that employers still have every right to fire workers who test positive for marijuana, even in states where it is legal.
Federal vs. state law
The voters and state legislatures in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington have legalized marijuana for medical and recreational use. Another 25 states and the District of Columbia have approved marijuana for medical use. Regardless of what the states have done, marijuana is still classified as a Schedule 1 federally controlled substance.
The US Supreme Court ruled in 2005 (Gonzalez v. Raich) that marijuana is still illegal under the controlled substances act, even if a state legalizes medical use. The Sixth Circuit Court of Appeals ruled in 2008 that private employees are not protected from disciplinary action for using medical marijuana and that employers have no obligation to accommodate a worker’s use of the drug. Because an employment contract is a private contract between you and the company you work for, your employer has the right to terminate you from your job as a result of testing positive for marijuana use.
The courts have also upheld that employers have a duty to protect other workers and customers. Therefore, if an employer suspects that an employee has illicit substances in the workplace, they have the right to search your workspace and to subject employees to drug testing.
In spite of the current trend toward legalization, marijuana use by employees continues to be incredibly costly to employers. Statistics show that positive tests for marijuana use increased almost 75 percent between 2013 and 2016, after Washington and Colorado legalized recreational use. A marijuana user’s behavior returns to normal three to five hours after smoking the drug, but memory impairment has been found to last 24 hours after use.
The National Institute on Drug Abuse found in 2014 that employees who use marijuana are involved in 55 percent more industrial accidents, 85 percent more on-the-job injuries and are 75 percent more likely to miss work than employees who don’t use marijuana. The journal of the Aerospace Medical Association (formerly the journal of Aviation, Space and Environmental Medicine) conducted a study of nine pilots who performed test flights after smoking one marijuana joint. 24 hours after ingesting the drug, seven of the nine pilots were still impaired and only one realized that he was impaired. Cannibis-related emergency room admissions have skyrocketed over the past two decades as marijuana use has increased in the United States, according to the Drug Abuse Warning Network. Studies and statistics like these are why many employers still exercise their right to terminate employees for marijuana use.
Recreational use vs. employment laws
Even if states legalize marijuana use for recreational use, smoking marijuana still violates numerous federal and state employment laws. This includes the Occupational Health and Safety Act, the Transportation Employee Safety Act, the Drug-Free Workplace Act and dozens of state employment laws. Activists who seek to legalize marijuana realize this and have deliberately avoided employment laws when drafting state legalization measures. A more cynical way of looking at it is this: The self-employed activist attorneys who write the language of statutes to legalize recreational use of marijuana might not have your best interests as an employee in mind!
The bottom line is that recreational use of marijuana is still illegal at the federal level and in many cases, it is illegal under state employment laws. Courts have consistently ruled that employers can fire workers for marijuana use. That’s not likely to change any time soon.