Is it legal to fire someone for using medical marijuana?
As marijuana laws change throughout the United States, employers everywhere find themselves facing this question. State and local legislation is undergoing sweeping change, but what does it all mean for your business? Here's an overview:
When Is It Legal to Fire a Medical Marijuana User?
Medical marijuana use by employees presents a potentially thorny legal question. On the one hand, marijuana is still classified as an illegal drug by the federal government and in most states and cities. On the other, medical use might imply that the question is one of disability discrimination -- a stance many employers rightly do not want to take.
The Colorado Supreme Court recently offered one potential answer. The court recently considered a case involving a former phone operator employed by Dish Network. The former employee used medical marijuana to treat the painful muscle spasms he suffers after experiencing serious injuries in a car accident. When his drug test came back positive for marijuana in 2010, the company fired him, citing its zero-tolerance drug policy. The former employee then sued the company for wrongful termination, arguing that his medical marijuana use was legal under state law and that, therefore, the company could not punish him for it.
The Court, however, disagreed with the former employee. While Colorado state law does prohibit employers from firing employees for "engaging in lawful off-duty activities," the court noted, medical marijuana use is not legal under federal law -- so drug policies that terminate employees for medical marijuana use can do so on the grounds that it is illegal activity.
The Challenge: Crafting an Employment Policy That Fits Your State's Rules
Currently, states appear to be split on the medical marijuana question when it comes to employment. Colorado, California, Oregon, Montana, and Washington all have court rulings on the books that allow employers to uphold federal law in their drug policies and terminate employees who use medical marijuana.
By contrast, Arizona, Delaware, and Minnesota have specific laws that prohibit employers from terminating employees solely for medical marijuana use -- but all three states do allow employers to terminate any employee who is impaired by medical marijuana use while on the job.
To create a workplace drug policy that follows your state's rules and meets your business needs, keep these factors in mind:
Seeking an Ally in the Hiring Process: Working with a Staffing Firm
When you're thinking about how to write or revise a drug policy for medical marijuana use, your staffing partner might not be the first assistant who springs to mind. Working with a staffing firm, however, can help your company avoid ever having to implement its medical marijuana policy.
Your staffing partner can help screen candidates, identifying individuals whose drug use records are clean. Furthermore, when you need temporary or contract help with a particular project, your staffing firm acts as the employer of record -- which includes responsibility for drug testing and for creating and implementing appropriate drug policies. While a staffing firm is not a substitute for a workplace drug policy, your staffing partner can do much to help your organization find the right candidate for every job.
Medical Marijuana and Employment Policy -- Get the Facts