Can I lose my job even if I’m legally smoking cannabis? The answer is not so clear.
The legal landscape surrounding drug testing varies greatly per state. Many employers require their workers to submit drug tests either before or after the company hires them. The recent legalization of cannabis in various U.S. states hasn’t fully transformed the employees’ drug test laws.
Legal cannabis use doesn’t mean that the law protects employees if they test positive for weed in the workplace. The punishment for failing a drug test varies per state and could include termination, rehabilitation, and losing unemployment benefits.
The question is, can you lose your job if you are legally smoking cannabis? I.e., if you have a medical marijuana card or live and work in a state that legalizes cannabis. Let’s find out.
Drug Tests for Employees per State
If you take a drug test and it turns out positive for cannabis, whether you will lose your job depends on your state and its respective employee drug test laws.
Since federal law still considers cannabis an illegal drug, federal law doesn’t restrict drug testing for cannabis. However, it does protect employees taking prescription drugs for a disability. On the other hand, several states restrict how, when, and if employers should conduct drug tests.
States that Explicitly Protect Employees
Among these states are Arizona, Minnesota, and Delaware that explicitly address drug testing, stating that a positive drug test alone shouldn’t and cannot automatically lead to a refusal to hire an applicant or fire an existing employee.
One state that goes a step further is Maine, which currently restricts employers from testing job applicants for cannabis use. The state also prevents employers from firing employees 21 years and above for using cannabis outside of the workplace.
There are a couple of other states in this category, e.g., New York, Rhode Island, Nevada, Illinois, Pennsylvania, etc. In such state, employers aren’t allowed to conduct random or routine drug tests, not unless they have a specific reason. For example, if the employee:
- appears under the influence at work
- has just completed a rehabilitation program
- has a safety-sensitive job description
- was involved in a work-related accident that resulted in property damage or injury
But even then, many states require employees to follow procedural requirements before the employer drug tests the employee. Under such provisions, the employer should:
- Provide prior notice to the employee or applicant
- Pay for part or all of the drug testing expenses
- Use a laboratory certified by the state
- Grant the employee/applicant an opportunity to challenge the results
- Administer the drug test without intruding on the applicant’s or employee’s privacy
If an employer violates any of the above requirements, the employer cannot fire or reject an applicant based on the drug test results.
States without Explicit Employee Protections Laws
Some states have a medical cannabis statute that provides no employee protection while others have a silent stature. An example is Ohio, which grants employers the right to establish and enforce a zero-tolerance drug testing policy.
In certain states without a clear directive on these laws, courts have, in the past, sided with the employer. Most courts in Colorado, Oregon, and California have held that employers can fire employees for using medical cannabis even if they have severe medical conditions and only use cannabis during non-working hours.
NB: California now has pending legislation that will stop employers from discriminating against medical cannabis patients in the workplace.
Legal Assertion to Employee Drug Testing
While individual states’ laws allow employers to drug test applicants, and encourage employees to uphold zero-tolerance policies, some circumstances can land employers in big trouble. But, that depends on a few factors.
Here is how employee drug testing can go wrong even in states with no employee protection.
- Disability Discrimination: While cannabis is illegal under federal laws, some drugs such as opiates are legally prescribed for people with disabilities. The Americans with Disability Act protects such employees or applicants, and can hold organizations liable if they turn them down due to a positive drug test.
- General Discrimination Claims: If an applicant or employee is singled out for a drug test regarding his/her race, gender, religion, or age, the company may be held liable.
- Invasion of employee’s privacy: An employer conducting the drug test shouldn’t, in any way, infringe the employee’s right to privacy.
- Defamation: If any employer publicizes false positive drug results or act in bad faith after that, the employee can make a defamation claim, and the employer will be held liable.
Navigating the employee drug testing laws can be challenging, especially in states like Oregon and Colorado, where the laws aren’t straightforward.
For employers in Colorado, consider seeking advice from a Denver employment lawyer. Organizations or businesses in Oregon can consult an employment attorney in the Portland area.
Marijuana laws are changing rapidly, and several states are legalizing it, while some are considering legislation around its use. If you are an employer or employee and you aren’t sure about the legality of marijuana and the corresponding legislation in your state, you can check the details on Wikipedia.