• The ADA Does Not Give an Employee the Right to use Medicinal Marijuana.
  • Even the 14 States that Protect Employees do not Protect All Employees, Nor Give Blanket Rights to Use Medicinal Marijuana, Such as Still Banning Use at the Workplace.
  • Recent Shifts in Law, and Trends in Law have Favored Employees Being Able to Use Medicinal Marijuana.
  • The ADA Does Not Give an Employee the Right to use Medicinal Marijuana.

Now that all but four states have Medical Marijuana, Recreational Marijuana, or CBD/THC Low Dose Use, Laws, a common question I get from employers is “can I fire an employee for testing positive for medical marijuana?” Of course, employees ask, “can I be fired for testing positive for using medical marijuana?”

The answer is that it depends on what state you are in and the job being performed. In New York, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, Pennsylvania, West Virginia, and based on a recent ruling, most likely, New Jersey, specific state laws protect some medical marijuana users from being fired for using medical marijuana. However, in states like Florida, Colorado, Georgia, Washington, Ohio and California, there are no state laws against firing someone for using medical marijuana https://www.nolo.com/legal-encyclopedia/state-laws-on-off-duty-marijuana-use.html.

Whether medical marijuana use is grounds for termination, not hiring an employee, or denying workers compensation benefits, is a major issue employees, and employers, face today. There was an 81% increase, between 2014 and 2018, in post-worksite-accident positive drug tests, and a 20% minimum increases of positive test results, between 2015 and 2017, for the transportation, manufacturing, and construction industries https://www.businessinsider.com/the-future-of-marijuana-drug-testing-at-work-2019-4.

The ADA does not extend to medical marijuana, because Section 12114(a) of the ADA states that an employer is not obligated to accommodate an employee’s use of drugs prohibited under Federal Law. Even if Marijuana is legal under state law, it is not legal under Federal Law. Hence, the ADA does not require an employer to accommodate a medical marijuana user. To date, Federal Courts have held that the ADA does not apply to medical marijuana use.

The ADA does not require medical marijuana use to be accommodated an employer, and the law has been slow to develop in this area, because of the ambiguity created by marijuana being illegal under Federal Law but not under some states’ laws. In New Jersey, last month, an appellate court ruled that the state’s ban on disability-based employment discrimination includes medical marijuana, and the laws in most states are evolving, albeit slowly https://www.governing.com/topics/mgmt/gov-medical-marijuana-legalization-workplace-policies.html.

However, even in states that have protections for some medical marijuana use, use is, usually, not protected when on the worksite, by workers in safety sensitive positions, or for workplaces that fall under The Drug Free Workplace Act. Meaning, in a state with protections for employees using medical marijuana, a salesperson at Best Buy is probably protected, a waiter is probably protected, but a bus driver, a crane operator, a teacher, or an employee of a company receiving Federal Funding, are probably not protected.

Even if the state prohibits employers from taking steps against employees who test positive for medical marijuana, Federal Law still prevents some employees from using medical marijuana. Laws such as The Drug Free Workplace Act, or the Department of Transportation’s prohibition on substance abuse for commercial drivers, are examples. The Drug Free Workplace Act requires employers who receive federal grant money, or contract with the government, to maintain a drug free workplace. A person who tests positive for medical marijuana, whose employer is taking Federal Money or contracts, can, often, be fired despite state laws protecting them.

If you are in a state that requires an employer to accommodate medical marijuana use, you may need to accommodate an employee’s use of medicinal marijuana. In Nevada, and New York City most pre-employment drug testing for marijuana is banned entirely https://www.usatoday.com/story/news/nation/2019/06/12/nevada-first-state-employment-marijuana-testing/1440037001/ & https://www.natlawreview.com/article/nyc-bill-banning-pre-employment-marijuana-drug-testing-becomes-law. However, even in the liberal state of California, the recreational marijuana laws allow employers to prohibit their employees from consuming cannabis. Hence, even the laws of the city where a company is located may affect whether the use of medicinal marijuana is protected for employees.

To conclude an employer can fire an employee for testing positive for medical marijuana in all but fourteen states. In fourteen states there are rules protecting users of medical marijuana, however, when Federal Law prohibits use, or when a person falls into a safety-sensitive classification or occupies a position of public trust, even in the fourteen states with protections for employees, an employee can still be fired, in some cases, for using medical marijuana. The employment regulations in nineteen states, which allow medical marijuana use, do not prohibit an employer from firing an employee for using medical marijuana.

There are trends in the law that indicate that the remaining nineteen states are taking steps to conform their employment regulations to their medical marijuana laws. That is why it is important to consult a labor attorney in your own state, before you take action, when an employee tests positive. The law changes all of the time, today there are nineteen states that do not protect workers, but by next week that number could be fifteen, or a Federal Court Decision can change if the ADA protects medical marijuana users. You need to make sure that you are up to date before you make an employment decision based on a drug test result, the only way to know for sure if you are complying with the latest regulations, is to call a labor lawyer and ask.

By: Joshua H. Sheskin, Esquire, M.A., Trial Counsel Lubell Rosen, 954-880-9500 jhs@lubellrosen.com.- Mr. Sheskin focuses his practice on both state, and federal, employment and business defense cases, including ADA, FLSA, EEOC, sexual harassment, and liability issues arising from business disputes.