Cannabis is legal in my state, but I got fired for using it. Do I have a chance to fight this?

Question:

Pot is legal in my state so can you tell me how I got fired for THC on my drug test last week?

I smoke grass in my house and on my own time and it’s none of my employer’s business. My buddies tell me I can sue my employer for violating my rights. Can I?

Answer:

When you took your job, were you aware of your employer’s policies related to drug use. If so, and if your organization has a zero-tolerance policy regarding drug use, you probably don’t have a winnable lawsuit.

Cannabis is legal for adult use in 19 states and for medical use in 36 states. At the same time, the Supreme Courts in multiple states have ruled that an employer’s zero-tolerance drug policy allows employers to fire individuals who fail company-sponsored drug tests. As one example the Colorado Supreme Court ruled against an employee made quadriplegic by a car accident used marijuana to control leg spasms.

Although this employee insisted that he never used marijuana while at work, the employer fired him for testing positive. The employee argued he had protection under Colorado’s lawful activities statute. The Court noted that because marijuana is illegal under federal law, it couldn’t be considered a “lawful activity” under Colorado’s lawful activities statute.

Further, although many state medical marijuana laws create an affirmative defense against criminal prosecution for medically used marijuana, they do not give patients an affirmative right to use marijuana, which would protect an employee with a legitimate need from being fired.

The Colorado ruling was just one in a series of national decisions denying job protection to state-sanctioned medical marijuana users who medicate off-duty, and by extrapolation, to recreational marijuana users. Although Colorado’s law, like those of many other states, additionally legalized marijuana for recreational use, but allows employers to prohibit marijuana use by their employees.

If your state’s courts rule similarly to these other Supreme Courts, your employer’s policy likely trumps state laws allowing recreational marijuana use. While your buddies correctly believe employees can take their employers to court when employer policies violate employee rights under state law, they’re forgetting federal law. Federal law considers marijuana use illegal and defines marijuana as a Schedule I drug, with no acceptable medical use. The federal Controlled Substance Act pre-empts any provision of state law that conflicts with federal law.

Where does this leave you as an employee and your employer? Under many state’s laws, you can recreationally use a limited amount of marijuana in your own home. If your employer has a zero-tolerance drug policy, your private use can result in your being fired.

Meanwhile, some employers now omit THC from pre-employment drug screens and have modified their drug policies to allow exceptions for legal drug use. A case can be made that an employee’s occasional off-the-clock, recreational marijuana use doesn’t impact on-the-job performance.

Other employers hesitate to change their existing policies, fearing that any loosening of well-established polices may impact workplace safety. We’re urging our clients to review their policies, before they lose long-term, high-performing employees whose private marijuana use shows up in random or scheduled drug testing.

Meanwhile, the U.S. House of Representatives recently passed the MORE Act. If passed by the Senate, this bill would end the federal prohibition on cannabis by removing t from the list of banned controlled substances.

You don’t, however,  want to act ahead of this law.1

1 https://www.forbes.com/sites/willyakowicz/2022/04/01/us-house-of-representatives-pass-federal-cannabis-legalization-bill-more-act/?sh=3132a35666d7

© 2022 Lynne Curry

3 thoughts on “Cannabis is legal in my state, but I got fired for using it. Do I have a chance to fight this?

  1. Thanks for this roundup of pros and cons of altering workplace policies against drug use for any reason, and thinks for explaining that employer policies that are clearly given to all employees can override state laws permitting recreational drug use. It would be good if the employer could find a way to permit carefully handled recreational drug use that is for medical symptoms and really relieves the symptoms.

  2. This entire subject certainly does create an interesting and potentially frustrating conundrum and conflict for many employees and employers.
    Some of the biggest potential conflicts will continue to exist even if the MORE act passes – unless the devil-details are addressed.
    DOT (Department of Transportation) has explicit ‘no-drug’ rules for truck, train and plane drivers; I’d add health care workers (doctors on call, nurses, medics), firefighters and cops to this list. Say what you may, I see NO ROOM FOR EXCEPTIONS for those and some other ‘safety sensitive’ employees.
    Even with ‘time out’ allowances – i.e. none used within XX hours of reporting for duty – certainly on-call would not be able to meet that consistently and ‘under the influence’ is under the influence…PERIOD! I have an inherent distrust for druggies and alcoholics to be honest with allowances. That’s based on my years of experience of dealing with some of them.

  3. Having worked construction in remote areas where doctors or medics were nonexistent, drug and alcohol use prior to or during work could be
    life threatening to the user or those around them.

    As an example, a journeyman crane operator was so hungover that his boom was not directly above a load he was lifting. The load swung towards a worker and knocked him off the lowboy. Luckily, he was not
    injured, but it cost the operator his job.

    Most fights were alcohol related. A dry and drug free camp makes some workers unhappy, but it contributes to a safer environment both on and off the job.

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