Can I be fired because I use medical marijuana for a disability?

Some states protect off-duty use of medical marijuana, but others do not.

Question

I have glaucoma, and my doctor gave me a prescription for medical marijuana to help me control my eye pressure. I use marijuana on the weekend and two evenings per week; I never use it during the work day or before work. I'm up for a promotion at my job, but my employer requires drug testing for this position. If I test positive for cannabis, can my employer use it against me?

Answer

It depends on what state you live in. About a dozen states with medical marijuana laws include protections for employees' off-duty use with a valid prescription, as long as they don’t show up to work under the influence of marijuana. In these states, employers cannot fire medical marijuana users based solely on a positive drug test. The employer would need some evidence that you were under the influence of marijuana at work or during work hours.

The other half of the states with medical marijuana laws either specifically allow employers to fire employees for off-duty use or don’t clearly address the issue. In states without a clear directive, courts often (but not always) side with the employer. For example, courts in California, Colorado, and Oregon have all held that employees may be fired for medical marijuana use, even when the employee has a serious medical condition and only uses marijuana during nonworking hours. (To learn about the rules in your state, see our chart on state laws on off-duty marijuana use.)

You might be thinking, what about the Americans With Disabilities Act, which prohibits discrimination against employees with disabilities and requires employers to provide reasonable accommodations to them? Your glaucoma might qualify as a disability under the ADA, depending on whether it substantially limits a major life activity. However, while the ADA does require employers to accommodate an employee’s use of legal prescription drugs for a disability, it does not protect illegal drug use. Because marijuana is still illegal under federal law for any purpose, it generally isn’t treated as legal drug use under the ADA or similar state laws. However, a few states have passed laws requiring employers to reasonably accommodate medical marijuana use.

You might also want to consider whether it’s legal for your employer to drug test you in the first place. While employers have a lot of freedom to drug test job applicants, the same is not always true of internal candidates for promotion. Some states restrict drug testing of current employees except in limited situations. To learn more, select your state from our testing at work page.

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