So far, 22 states have legalized the use of marijuana, either for medical or recreational use. The legalization of a once-banned substance can create confusion in the employment context. Does legalization protect employees from adverse employment action based on legal use?
Marijuana is still illegal under federal law. Although this area of law is not yet fully developed, some federal courts have already determined that certain federal laws, such as the Americans with Disabilities Act (ADA), do not protect legal marijuana users.
Even though federal laws may not apply, states have enacted laws that prohibit employers from taking adverse employment actions against legal marijuana users. Some states have laws protecting against adverse employment actions based on an employee’s use of lawful products or medically prescribed substances. While other states (Arizona, for example) have included express language in their marijuana legalization laws prohibiting discrimination against legal marijuana users. In states with such protections, employers may not rely on an employee’s legal use of marijuana as a basis for termination or other adverse employment action.
In the absence of laws specifically protecting employees, the fact that marijuana use is legal in a state may not prohibit that state’s employers from taking adverse employment action based on marijuana use. In Roe v. TeleTech Customer Care Management, a Washington state court upheld an employer’s decision to terminate an employee for her off-duty use of doctor-prescribed medical marijuana in violation of the employer’s drug policy. Even though the employee’s marijuana use was allowed by Washington law, the court determined that the wording of the legalization statute neither prevented an employer from firing an employee for marijuana use nor supported a cause of action for wrongful termination.
Employers in states which have legalized marijuana use should be aware that legalization may affect their ability to take adverse employment actions against marijuana users. They should revisit their drug use and drug testing policies to ensure that they conform to the new, more marijuana-friendly landscape.