Can you get fired for medicinal marijuana use?
Kathleen Harward
Issue date: 5/5/08 Section: Opinion
The best part of being a lawyer is getting to answer interesting questions. This week, one was asked by a student using medical marijuana to treat chronic migraines. "Can employers fire me, or refuse to hire me, when I test positive on their drug tests?"
First, most employees, who are not in union or government jobs with added procedural protections, are "at will" under the law, meaning the employee or the employer can end employment at any time without a reason.
The exception is when the employee falls into a legally protected category and the firing was based on the employee being in that category. We're all familiar with the usual ones: race, color, gender, religion, age, national origin and disability. Use of medical marijuana isn't one of them.
The medical marijuana amendment to the Colorado Constitution doesn't help. While it protects from criminal prosecution under Colorado's drug laws, it specifically states that it does not require employers to accommodate the medical use of marijuana in the work place.
The Americans with Disabilities Act prohibits discrimination against a person with disabilities so long as the person can perform the essential functions of the job with accommodations -- in this case debilitating headaches that can be accommodated with medical marijuana.
This would be a promising argument until you consider that the ADA is a federal law, and, under another federal law, the use of marijuana is still a criminal act.
Think about it. As long as marijuana is illegal under federal law, could you really expect a Colorado employer to be forced to accommodate an employee's use?
Even if the Colorado amendment had passed with language creating a workplace protection, a Colorado court would still likely have to rule against an employee because of the supremacy of federal law.
Just this January, the California Supreme Court in Ross v. Ragingwire reached this conclusion. In that case, a U.S. Air Force veteran, who used medical marijuana on the advice of his doctor to alleviate back pain caused by previous combat injuries, sued his employer for firing him for a positive drug test. The veteran argued that California's version of the federal Americans with Disabilities Act gave him protection. The court disagreed.
First, most employees, who are not in union or government jobs with added procedural protections, are "at will" under the law, meaning the employee or the employer can end employment at any time without a reason.
The exception is when the employee falls into a legally protected category and the firing was based on the employee being in that category. We're all familiar with the usual ones: race, color, gender, religion, age, national origin and disability. Use of medical marijuana isn't one of them.
The medical marijuana amendment to the Colorado Constitution doesn't help. While it protects from criminal prosecution under Colorado's drug laws, it specifically states that it does not require employers to accommodate the medical use of marijuana in the work place.
The Americans with Disabilities Act prohibits discrimination against a person with disabilities so long as the person can perform the essential functions of the job with accommodations -- in this case debilitating headaches that can be accommodated with medical marijuana.
This would be a promising argument until you consider that the ADA is a federal law, and, under another federal law, the use of marijuana is still a criminal act.
Think about it. As long as marijuana is illegal under federal law, could you really expect a Colorado employer to be forced to accommodate an employee's use?
Even if the Colorado amendment had passed with language creating a workplace protection, a Colorado court would still likely have to rule against an employee because of the supremacy of federal law.
Just this January, the California Supreme Court in Ross v. Ragingwire reached this conclusion. In that case, a U.S. Air Force veteran, who used medical marijuana on the advice of his doctor to alleviate back pain caused by previous combat injuries, sued his employer for firing him for a positive drug test. The veteran argued that California's version of the federal Americans with Disabilities Act gave him protection. The court disagreed.
Viewing Comments 1 - 1 of 1
Craig Hawley
posted 5/05/08 @ 2:28 AM MST
Wow that was a great and informative article. Thanks.
Good thing I work for my self. :)
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