Last updated: September 28, 2020
It May Be Legal to Smoke Marijuana, But Your Employer is Still Free to Fire You for It
If you’re a marijuana user, this is a great time to be alive. Not since 1936 (the Marijuana Tax Act of 1937 was passed the following year) has marijuana use been so widespread. As of 2017, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington) permit both medicinal and recreational use of marijuana. Another 25 states and the District of Columbia allow unimpeded use medicinal marijuana (with varying levels of regulation for the use, transfer and sales of recreational marijuana).
However, it is important to remember that neither legalization nor decriminalization can necessarily protect marijuana (even medical marijuana) users from being fired by their employers. Say what? You heard us. Why is that, you ask?
Well, for starters, marijuana is still illegal at the federal level. Despite the flurry of decriminalization and legalization at states’ level, under federal law (Controlled Substances Act, Title 21 U.S.C. § 811), marijuana is classified as a Schedule 1 drug alongside cocaine, Ecstasy, morphine and heroin. It is still considered a highly addictive and dangerous drug with no medicinal value.
In fact, while delivering its decision for Gonzales v. Raich (2005), the United States Supreme Court held that, under the Commerce Clause and the Controlled Substances Act, Congress and the federal government have the authority to regulate interstate and intrastate commerce of marijuana. Further, the government has the authority to prosecute users (medical and recreational) even in states which have legalized marijuana use.
However, the federal government does not consider the prosecution of marijuana cases as a matter of priority, as outlined in the August 2013 Department of Justice guidance memo to prosecutors. The Department will continue to rely on state authorities to enforce such laws.
To put this into perspective, usage of marijuana contravenes employment laws, such as the Drug-Free Workplace Act of 1988, Omnibus Transportation Employee Safety Act of 1991, Occupational Health and Safety Act of 1970, and dozens other state laws. Since employment contracts are private contracts entered between employers and employees and regulated by employment laws, employers retain the right to terminate the employment of staff who use drugs listed under the Controlled Substances Act.
Marijuana legalization activists are aware of this conflict , which echoes the challenges faced by the banking industry and marijuana-related businesses. Leland Berger, an attorney who assisted in drafting Oregon’s marijuana legalization law, stated that the bill’s drafters intentionally excluded employment protection from the bill as it “never would have passed otherwise.”
Yeah, but the Fourth Amendment protects me from random searches and drug tests, right?
Wrong, unfortunately. As we have already explained above, federal laws supersede state laws, and use of marijuana is deemed illegal federally. As such, if employers have reasonable grounds to suspect that an employee is hiding illegal substances in the workplace, they are allowed to conduct random searches without contravening the protection against ‘unreasonable searches and seizures’ as outlined in the Fourth Amendment.
Additionally, federal courts have repeatedly (and rightfully) upheld that employers are responsible for the safety of workers and customers in the workplace. This provides employers the grounds to conduct random, reasonable suspicion, or post accident drug testing, to ensure the safety of everyone in the workplace.
So, the moral here is, make sure you fully understand the marijuana policy of any potential employers before signing on the dotted line to avoid any future complications—such as getting fired. Or, be smarter and simply don’t smoke marijuana.