Regardless of how legal cannabis may help workers with chronic pain, social anxiety, or numerous other struggles, even in states where cannabis is legal, workers still run the chance of getting fired for cannabis use.
Out of the 30 states that have joined the legalization of cannabis in some form, only 15 states have made legal protections for employees who use legal marijuana.
The 15 states who do not offer legal protections for cannabis users allow employers to drug test and fire those who may use outside of work.
Current Court Trends
Recently, courts have been lenient on medical cannabis users who test positive in the workplace. Specifically, Rhode Island and Massachusetts have recently ruled that after-hours use of medical cannabis will not result in a firing from a job.
However, this leaves recreational users in the dust. It seems like a hard line to draw that even though cannabis can now be used recreationally in the District of Columbia and 11 states just as alcohol, one can get you fired simply for testing positive for it.
Even though the legal and social world is rapidly changing in regards to cannabis use, groups, such as the National Safety Council, lobby to ensure that workplaces enforce a “zero-tolerance policy” of marijuana use.
Since this issue is so new, especially in the workplace, protections for workers in legalized states remains very limited. According to Michael C. Subit with the American Bar Association, only 9 states provide for explicit employment protection of off-duty cannabis users.
What should a legal cannabis user do to ensure they are protected in the workplace?
There is no straight-line answer to protecting oneself from being fired or penalized at work for legal cannabis use.
As time continues with the acceptance of medical and recreational cannabis in society, more and more employers are likely to become less strict about drug testing and firings for positive tests. However, even if cannabis is legal in your state, there remains caution to use if you want to make sure you keep your job…..for now.
If a worker wants to secure an attorney, they can argue for anything from an American Disabilities Act grievance to a grievance or medical leave under the Family and Medical Leave Act.
However, non-legal protection includes simply hiding your cannabis use or finding an employer who is more cannabis friendly.
It is up to the discretion of the employer to punish the worker for their use, however, this is a true gamble.