State Legalization of Marijuana and the Effects on Employment Law

Before lighting up your next joint or taking a rip from the bong, keep in mind the possible consequences with your job. Very little has changed since states started legalizing marijuana use and possession. Don’t assume that since the state legalized marijuana, you cannot be legally terminated or denied unemployment benefits. A majority of courts in the states have refrained from providing such protections.
Currently 23 states and the District of Columbia have legalized the use and possession of marijuana for medical purposes. Of the 23 states, four have legalized its recreational use. Since 2010 In Arizona, a person can only possess and use marijuana for certain medical conditions. Keep in mind that federal law still prohibits the use and possession of marijuana. Because federal law trumps state law when the laws are in conflict with each other, judges have been reluctant to recognize marijuana use as a right with regard to employment. Judges will often hang their hat on the fact that marijuana is still illegal under federal law and often rule in favor of the employer.

      There has been a number of recent decisions from various states that demonstrates judges’ unwillingness to recognize the employee’s right to use marijuana. For instance, in 2012 an employee who held a medical marijuana card, used marijuana off the job and failed a drug test and was subsequently terminated. The employee sued the employer but the court held that the state’s medical marijuana statute only provides a defense against state prosecution or adverse action, it does not regulate private employment. The courts have also rejected a former employee’s disability discrimination claim after a handicapped individual was terminated and upheld a state’s refusal to provide unemployment benefits because the court considered smoking marijuana as misconduct.

The best way to prevent getting terminated for marijuana use is to obviously refrain from using it. If you are in a state that allows marijuana use for medical purposes and you exercise that right, be conscious of the fact that if you are terminated because of your use and you bring a lawsuit against your former employer, an uphill battle awaits. Employers should be aware of the current laws and review their company policies and job descriptions for compliance. If you have any questions about rights concerning marijuana use and employment, contact my office or another attorney who is experienced in employment law.