With a number of states legalizing medical and recreational marijuana in recent years, many employees wonder whether they are protected from being fired for smoking pot. In nearly all states, it’s clear that employers are free to fire employees for being under the influence of marijuana at work. But what about off-duty use? It depends on your state's laws and whether you were using marijuana for medical or recreational purposes.
Thirty-five states and the District of Columbia have medical marijuana laws on the books. In these states, people with serious health conditions can register for a medical marijuana card, as long as a doctor has authorized the treatment. Individuals who use medical marijuana will not be prosecuted under state law; however, marijuana is still illegal under federal law, even for medical purposes.
More than a dozen of these states—including Illinois, Massachusetts, Arizona, and Delaware—have employment protections for medical marijuana users. In these states, employees generally cannot be fired or otherwise discriminated against for being a registered medical marijuana cardholder or because they test positive for marijuana on a drug test. In other words, off-duty medical marijuana use is protected in these states. However, employers may fire employees for being under the influence of, or impaired by, marijuana at work or during work hours. These laws do not prohibit employers from discriminating against medical marijuana patients in order to comply with federal requirements (for example, as a condition of receiving federal funding).
In the other states with medical marijuana laws, the law either expressly allows employers to fire employees for off-duty use or doesn't address the issue. However, in these cases, courts often side with employers against even the most sympathetic employees.
In Coats v. Dish Network, 350 P.3d 849 (Colo. 2015), the Colorado Supreme Court heard a case from an employee who was quadriplegic and needed medical marijuana to control leg spasms. The employee used marijuana with a valid prescription during non-working hours only, but was fired after testing positive for marijuana during a random drug test. The employee sued, arguing that under the state’s “off-duty conduct” law, it was illegal for an employer to fire an employee for engaging in lawful activities outside of work. However, the Colorado Supreme Court ruled against him. The court held that, even though medical marijuana was legal under state law, it was still illegal under federal law and therefore not protected as a “lawful” activity. Courts in California, Oregon, and Washington have also ruled against employees in these situations.
To learn about the rules in your state, see our chart on state laws on off-duty medical marijuana use.
As of November 2020, more than half the states—including Oregon, Washington, California, Nevada, Maine, Massachusetts, and Alaska—have passed laws legalizing or decriminalizing marijuana for recreational use. However, these laws generally do not protect employees from being fired due to their off-duty marijuana use. In fact, many of these laws expressly state that they do not affect an employer’s right to continue to enforce zero tolerance workplace drug policies. (To learn more, see our chart on state laws on off-duty recreational marijuana use.)
The rules above assume that the employee tested positive for marijuana on a legally administered drug test. If the drug test itself violated the law, the employee cannot be fired based on the results. While federal law does not place restrictions on drug testing, the laws of many states do. (Federal law does protect employees who take prescription drugs for a disability; for more information see Can I be fired if I test positive for a drug that was prescribed by my doctor?)
Many states have laws addressing when and how employers can conduct drug tests. In general, employers have much more leeway to test applicants than current employees. Employers are typically free to routinely drug test applicants after making a conditional offer of employment. However, in some states, employers are not allowed to conduct routine or random drug testing of employees who are already working for the company. Instead, the employer needs a reason to test a specific employee, such as:
Even if the employer has the legal right to test, many states impose procedural requirements that the employer must follow. Many states, for example, require that the employer:
To learn more about the rules on drug testing in your state, see our Testing at Work page and select your state under “Employee Drug Test Laws.”