Pot is now legal in a bunch of states. Twenty-three, in fact, have legalized some form of medical marijuana, with four other states (and maybe DC) also permitting recreational use. But don’t get too excited just yet, because while these new laws may prevent you from getting arrested for marijuana use, they won’t necessarily prevent you from getting fired — even if you’re only using it in your off time.
While it’s still amazing news that fewer people will end up incarcerated for nonviolent drug use, it’s cold comfort for someone like Brandon Coats, a quadriplegic using medical marijuana in Colorado, who was fired after testing positive in a workplace drug test. This, in spite of the fact that he swears he never used it during working hours and everything he did was entirely legal under Colorado law. While his appeal is still pending, other courts have similarly ruled against legal pot users in Washington and Oregon.
To understand why, it’s important to start with the basic fact that the vast majority of people in the US can get fired for literally no reason at all. That means an employer doesn’t have to have a particularly good reason to fire someone. The only thing employers can’t do is fire people in violation of law. So, for example, people can’t get fired because of their race or disability, because that violates federal laws (and often state and local laws), which explicitly protect employees from those kinds discriminatory firings. But there’s no law saying, for example, that you can’t fire people for being a Red Sox fan, so even though that’s an entirely insane reason to fire someone, it’s probably not illegal.
Similarly, there’s no federal law protecting people from being fired for marijuana use, since marijuana is still illegal under federal law. How about the Americans with Disabilities Act? Many marijuana users in these states are using it under the care of a doctor, and are likely disabled. Shouldn’t people with disabilities be allowed to treat their conditions without worrying about losing their jobs? I’d say absolutely, but laws don’t work that way. The Americans with Disabilities Act has an explicit carve out stating that people currently using illegal drugs can get fired for it, regardless of their disability, and marijuana is still an “illegal drug” under federal law. So, regardless of how much the medical community may agree about the benefits of marijuana use for certain conditions, federal law absolutely allows employers to fire employees for using it, even in their off-time.
Luckily, federal law isn’t the only law. Some states that have legalized medical marijuana have also passed laws preventing employers from discriminating against people who use it. Connecticut, Delaware, Illinois, Minnesota, and Rhode Island all provide some amount of employment protection for most people enrolled in medical marijuana programs.
I say “most people” because some employers, like federal contractors, might be required to ensure that none of their employees use any substance illegal under federal law, even if they’re using it in their own time. Every state listed above has an exception for these workplaces. In other words, if federal law requires a certain workplace to ensure that none of its employees ever use marijuana, then state law won’t interfere with that, and those employers can fire people for failing drug tests.
Another issue is that most of these states also allow employers to terminate people for using or being under the influence of marijuana at work. This may seem like it makes sense — no one wants their employees to be stoned at work — but there is also such a thing as medical marijuana that doesn’t get people high, offering medical benefits without impairing people’s cognitive functioning. Thus, while some people may be able to take, say, oxycodone at work‚ which most definitely can impair cognitive functioning — they still wouldn’t be allowed to use medical marijuana that doesn’t even get anyone high.
There’s also an issue of proof. For example, Arizona explicitly prevents employers from terminating people for using pot legally in the state, but recently passed an amendment that may well allow employers to use a simple drug test to determine whether someone was using at the workplace. It’s a ridiculous standard of evidence given that pot can linger in one’s system for weeks, making it virtually impossible to tell whether someone was using at work or at home.
Nevada law strikes a middle ground, requiring employers to provide “reasonable accommodations” for employees who are enrolled in the state’s medical marijuana program, which simply means that the employer has to allow the employee to use pot unless it would unreasonably interfere with their work or constitute an “undue hardship” to the employer. Whether this test ends up being more or less favorable than those mentioned above remains to be seen. For example, while it’s entirely possible that under this law, some people might be allowed to use marijuana at work (where it would not interfere with their ability to do their job), it’s equally possible that the threat, however remote, of a federal drug raid may be sufficient to constitute an “undue hardship” for employers such that employees can be legally prevented from bringing marijuana to the workplace.
So what’s the moral of the story? Anyone using marijuana anywhere in the United States is still violating federal law, which means any number of problems can still arise. So no matter what state you’re in, if you’re using marijuana, you still run some risk of getting into trouble, whether with the feds or with your employer. In order to know just how big of a risk, it’s important to read local laws carefully — very carefully. (The Marijuana Policy Project has a great breakdown here.)
This piece is cross-posted on Life of the Law, a ”new and unique radio and multimedia project that explores the relationship of law to the experience and meaning of American society and culture.”
Photo: Mark via Flickr