As marijuana gains increasing acceptance in the U.S., it’s important for users to keep in mind that they can still be fired for pot use — even if it’s legal pot.
If you are in an impaired condition that can affect your work — whether it’s due to marijuana, alcohol, or something else — your boss can fire you. That much is clear.
But what about marijuana use in your free time? If your state has legalized recreational and/or medical cannabis, can your employer still fire you for legal pot use away from work? The answer is probably. But it depends on where you live as well as a few other factors.
Even though 39 states have legalized marijuana for medical use and 21 allow recreational use, the federal government still considers pot an illegal drug. Although workplace drug testing policies are declining somewhat, many employers still do them on a random basis or when they suspect an employee is using drugs — and they can fire an employee who fails a drug test. In addition, federal contractors and businesses that employ certain regulated professionals like pilots or drivers are required to test for drugs under federal law.
When Can Employers Test?
Generally, state laws give employers the right to test applicants for drugs as a condition of employment. The state laws regulating drug testing of current employees, however, are often more restrictive. Some states ban or restrict random drug testing in the workplace.
While laws provide some protection for employees, there are also exceptions when an employer is justified in testing:
When the employee has a job that could threaten public safety
When a medical examination is required for fitness of duty
When there is reason to believe that the employee is under the influence of drugs at work
Protections for Recreational Users
In September 2022, California became the seventh state to enact a law limiting the ability of employers to take adverse action against workers for off-duty marijuana use. That law goes into effect on Jan. 1, 2024.
The other six states that have laws protecting employees’ right to use recreational marijuana are:
These laws vary and do still provide employers some leeway in restricting employee pot use. For instance, Connecticut allows employers to prohibit employees from off-duty marijuana use if the business has a written policy in place. Connecticut also exempts manufacturing and health care companies from the law.
Most Pot-Legal States Don’t Protect Employees
It’s important to note, of course, that while these six states provide some protections to marijuana-using employees, that leaves 15 states with legal recreational marijuana where employees have no such protections for recreational use.
Generally, employees certified for medical marijuana use have stronger protections. By one count, 23 of the 39 medical-marijuana states prohibit employers from discriminating against workers based on their use of medical marijuana.
Since most employers in pot-legal states can still fire employees for marijuana use, one good word of advice to users is to keep their cannabis activity on the down low. Posting on social media about the great weed you enjoyed with your friends over the weekend is probably not a good idea.
If your employer threatens discipline over your use of legal marijuana, you should check to see what the law says in your state. If you are certified for medical use, you may have a stronger argument that disciplinary actions are discriminatory. And if you are fired for using legal marijuana, you may very well have a valid case, and you should consider contacting an experienced employment lawyer near you.
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