Should employers have the right to fire employees for using marijuana during their personal time?
A recently released YouGov/Huffington Post survey found that 45 percent of Americans believe that off-duty marijuana use, just like alcohol, should not be grounds for termination, while 32 percent said a company has every right to fire an employee who consumes marijuana, even if it’s used during non-working hours.
Although legalization legislation, specifically medical-marijuana laws, has become more common in the U.S., one issue that many patients and employers have encountered is whether employees can be fired for marijuana use even if they have a prescription.
According to the lead attorney for the Equal Employment Opportunity Commission, firing an employee for marijuana use, even in a medical-marijuana state, is legal because federal law does not permit the use of marijuana for any reason.
Therefore, every employee with a medical-marijuana prescription is not protected under the Americans with Disabilities Act because the “ADA plainly states that current use of illegal drugs cannot be considered a disability.”
Yet a growing number of Americans seem to disagree with this interpretation of the law. In states where marijuana is legal, the YouGov/Huffington Post poll found that 64 percent of Americans believed firing an employee for marijuana use was unacceptable, while 22 percent found it acceptable.
These numbers are identical to results researchers received when they asked about consuming alcohol during employees’ personal time.
Johnny Green, a marijuana activist from Oregon, wrote a blog post about the poll’s findings and said he lives in fear and hopes every day that he doesn’t get fired for his use of marijuana after work, since he says his employer is “ruthless” when it comes to marijuana use.
Green told of how one of his co-workers got into an argument with another co-worker, and the two ended up in a mediation meeting with management. During that meeting, the beans were spilled, with one employee being named as a marijuana user. This prompted management to issue a drug test for the employee.
Since marijuana stays in a person’s system for about 30 days, the employee failed the drug test and was fired. But Green says this zero-tolerance termination policy is problematic because drug tests do not indicate or prove that an individual is impaired or was impaired while at work.
Pick one: Pain relief or employment
Joseph Casis was fired in 2009 from his job as an inventory control manager at a Wal-Mart store in Michigan after he tested positive for marijuana.
A medical marijuana patient since 2008, Casias used the drug to help him deal with and treat symptoms for an inoperable brain tumor and cancer, since his medical condition caused him so much pain it interfered with his ability to speak. Casias said marijuana helped “tremendously” with his pain.
But in November 2009, Casias sprained his knee while at work. As per Wal-Mart’s company policy, a routine drug screening followed the incident, as the company does with all workplace injuries. He tested positive for marijuana. He tried to show his managers his Michigan medical marijuana card, but to no avail — he remained fired.
“I was told they do not accept or honor my medical marijuana card,” Casias said, adding that he never smoked marijuana before going to work.
Casias filed a lawsuit against Wal-Mart with the help of the American Civil Liberties Union.
Scott Michelman, a staff attorney with the American Civil Liberties Union (ACLU), helped represent Casias, and said “No patient should be forced to choose between adequate pain relief and gainful employment, and no employer should be allowed to intrude upon private medical choices made by employees in consultation with their doctors.”
But a Michigan appeals court disagreed, and last year ruled that Wal-Mart had every right to fire an employee who used medical marijuana even if it violated the state’s medical marijuana laws, since marijuana use — even if prescribed — “conflicts with its safety policy in stores.”
“I never came to work under the influence, ever,” Casias said. “I don’t think it’s fair. Because I have a medical condition I can’t work and provide for my family?”
According to the Associated Press, the Michigan federal appeals court ruled that the “state medical marijuana law provides some immunity in criminal cases, but it doesn’t offer protection to people in the workplace.”
What this ruling meant is that the only time a medical marijuana patient would be protected under ADA law is if an employer fired a worker for using marijuana to help with cancer pain in order to avoid health insurance premiums from going up because of expensive cancer treatments, or if an employer fires a medical marijuana patient, but takes no action against other employees who are recreational marijuana users.
“[A]s long as the employer treats all marijuana users the same, the fact that one was using it for a disability would not protect her under the ADA from being fired, as he or she would be considered a current user of illegal drugs under federal law,” said an EEOC attorney.
Employment law lags behind marijuana legislation
As laws regarding marijuana use become increasingly common in the U.S., it’s likely lawsuits like Casias’ will become more commonplace. For example, in February, Maine-based medical marijuana patient Brittany Thomas sued her former employer for not rehiring her after she told the company that she uses marijuana for medical reasons.
Specifically, Thomas used medical marijuana to help with her severe back pain that was caused by arthritis, bulging discs, an annular tear and a pinched nerve.
Represented by the ACLU of Maine and attorney Walter McKee, Brittany Thomas’ case was one of many that highlighted the legal conflict that has arisen in states where marijuana is legal since it is still illegal federally.
McKee said that since an employer would never discipline an employee who tested positive for an FDA-approved drug, medical marijuana users should not be treated differently.
“Using medical marijuana would never have gotten in the way of me doing my job, because I never would have taken it while on duty,” Thomas said. “I choose to use medical marijuana to control my pain because it doesn’t have any of the side effects of stronger pain medication, like addiction. The incredible thing is: If I was using a stronger drug [like narcotics], I could have kept my job.”
But it’s not just medical marijuana patients that are negatively impacted by employment law’s current interpretation of marijuana use, it’s also recreational users in the two states that have thus far voted to legalize marijuana for adults 21 and older.
In April the Colorado Court of Appeals ruled that although medical and recreational marijuana use is legal in the state, employers can lawfully fire workers who test positive for the drug, even if it was used off duty.
The court said lawmakers could make changes to the current law in order to protect people who use marijuana, but so far those changes have not been made.
And according to the Marijuana Policy Project, the California Supreme Court ruled previously that people could be fired for testing positive for marijuana. The California State Legislature passed a bill hoping to change that in 2008, but that legislation was vetoed.
Currently only four states have protection for employees included in medical marijuana legislation. Two of those states, Delaware and Arizona, offer protection for medical marijuana patients from being terminated for lawfully using medical marijuana, unless an employee’s use of a federally prohibited substance would jeopardize an employer’s federal licensing or contracts.