While marijuana may be legal in some states, employers can still drug test and terminate employees

Five states in the United States have legalized recreational marijuana, twenty-three states have legalized medical marijuana, but employers in these states can still require drug tests and fire an employee over a failed drug test, even though the conduct is no longer criminalized.

Photo by Russ Belville (High Times).

When Colorado legalized marijuana, many celebrated.  Among those celebrating were those who believed that laws criminalizing recreational marijuana use were clogging our court systems and that such drug charges should not be criminalized.  However, the issue of penalizing marijuana use, whether recreational or medical, is not resolved in those states where medical marijuana and/or recreational marijuana use are permissible within the state.

The states that have passed laws or constitutional amendments that permit the use of medical or recreational marijuana provide that these acts will not be criminalized within the state courts.  These acts are not “lawful acts,” however, when considering other non-criminal repercussions that could result from the use of marijuana or other controlled substances.

[C]ourts have held that the employer’s right to take adverse action against an employee or prospective employee for failing a drug test is still very much intact.

Five states, the District of Columbia, Colorado, Washington, Oregon, and Alaska, have legalized the use of recreational marijuana and have regulated recreational marijuana distributions.  Twenty-three states, including the five listed above, have legalized the use of medical marijuana.

In states such as Colorado, Washington, and Oregon who have legalized medical and recreational marijuana, on the issue of drug testing in the workplace, the state courts have held that the legalization or the de-criminalization of medical and/or recreational marijuana does not affect an employer’s right to drug test.  Importantly, those courts have held that the employer’s right to take adverse action against an employee or prospective employee for failing a drug test is still very much intact.

Why is that the case?  How is it that medical and recreational marijuana can be legalized, but you can still be fired for doing something your state has deemed “legal?”  That’s because it’s not technically “legal.”  Rather, it’s just “de-criminalized.”  The federal statutes and laws, as a preempting body of laws to state laws, still consider the use of marijuana (a controlled substance) an illegal activity.

While the use of recreational or medical marijuana is not criminalized, the act is not “protected.”

Colorado specifically has stated that recreational marijuana use has been legalized, but that an employee has no claim for wrongful termination after being fired for failing a drug test or refusing to take a drug test.  While the use of recreational or medical marijuana is not criminalized, the act is not “protected.”  Generally, an employer may be liable under the ADA for taking adverse action based on a positive drug test resulting from the legal use of a medication; however, that is not the case for medical marijuana.  Additionally, Colorado state statutes state that nothing in their medical marijuana statutes shall require an employer to accommodate the medical use of marijuana in the workplace.

The Colorado Court of Appeals stated in Coats v. Dish Network, L.L.C., that while the plaintiff argued the use of medical marijuana was a lawful activity under the state statutes, medical marijuana was not considered a “lawful activity.”  The Court stated that because federal law prohibited marijuana, it’s not considered a “lawful activity.”  The activities conducted in Colorado are subject to both state and federal law, and therefore, for an activity to be protected in Colorado, it must comply with both federal and state laws.

The interesting aspect of this case is that Colorado has a law stating that workers cannot be fired for legal activities while off duty.  The Court had to interpret the meaning of “legal activity” and what is considered lawful as the statute does not define the term.  The court looked to the ordinary meaning of the term, which they concluded is “permitted by law.”  While it would seem that medical and recreational marijuana is permitted by law, the use is permitted by Colorado law, not federal law – which is not enough to deem the conduct “lawful” or “permitted by law.”

The law stating that one cannot be fired for legal activities done while off duty creates disconnect and causes confusion amongst those who interpret it to mean something that is legal within the state.  Many interpret this law as stating that an activity done off duty, such as smoking marijuana because it is not criminalized in Colorado cannot create a penalizing result, such as being fired.

Other states that have legalized medical and/or recreational use of marijuana have held similar opinions.  For instance, in Oregon, the Court in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries held that because the federal statutes on illegal controlled substances preempts the state’s Oregon Medical Marijuana Act, employers do not have an obligation to accommodate the legal use of medical marijuana by an employee.  Additionally, Oregon law does not prohibit an employer from drug testing an employee or terminating them due to failing a drug test.  In Alaska, the statutes specifically have a provision stating that though the use of marijuana is legal, an employer is not prohibited from restricting the use of marijuana of its employees through valid work policies.

Employers often use drug tests for legitimate reasons. . .

North Carolina employers have been concerned with the possibility of legalizing marijuana for recreational or medical use.  Questions linger about what the effect would be on employers who drug test, who want to drug test, and who have employees that need to be drug tested based on their job duties.  Employers often use drug tests for legitimate reasons, and there has been an unqualified idea that employers who drug test now would not be able to drug test if recreational or medical marijuana was legalized in the state.

While it is not probable or even really being discussed in the General Assembly, if marijuana were to be legalized in North Carolina, the result would likely be the same – marijuana use will still be considered illegal conduct and therefore not protected by wrongful termination statutes.  If marijuana use, either recreational or medical, were legalized in North Carolina, it’s likely the use of marijuana will increase due to a lack of criminalizing the conduct.  What could that mean for employers and employees?

With the increased use of marijuana due to a lack of criminalization, employers may encounter more instances of employees faking their drug tests or substituting urine samples to avoid termination.  Employers may even face higher turnover.  There are perks to drug testing in the workplace – higher productivity, lower turnover, and even less instances of employees being absent from work.  However, with the higher use of marijuana, and employers continuing to drug test, could there be a higher turnover rate as employees are let go for failing a drug test that is required for employment?  It’s possible.  As employees fail drug tests for legally using marijuana, their employment may, as a result, terminate, causing the employer to find a new employee to take the role of the employee who was terminated.

Regan Gatlin, Ethics Editor
About Regan Gatlin, Ethics Editor (42 Articles)
Regan Gatlin is a 2016 graduate and served as the Ethics Editor for the Campbell Law Observer for the 2015-2016 academic year. Regan graduated from North Carolina State University in 2013 with a Bachelor of Arts in Political Science and a minor in Sociology. Regan has previously clerked for the Insurance Section of the North Carolina Department of Justice, The General Counsel of The Select Group, and Safran Law Offices. During her experiences clerking, she gained civil litigation and research experience in the areas of insurance, construction law, labor and employment, and compliance. She also competed on a Campbell Law Trial Team in the Buffalo-Niagara Mock Trial Competition and the American Association for Justice (AAJ) Mock Trial Competition. Regan is from Smithfield, North Carolina.
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