Aceto, Bonner & Cole PC

Can employers fire workers for marijuana use?

January 28, 2017

One of the more contentious issues to come up in employment law in recent years is whether people who legally use prescription medical marijuana can be fired by employers who carry out drug tests. In Massachusetts, this is far from a settled issue in employment law, where employers have to balance the privacy rights of employees with compliance with federal law. Employers can take some direction from the fact that courts throughout the country have tended to find in favor of employers on this issue as it arises in legal disputes.

During or outside of work hours

As most of us know, Massachusetts has legalized medical marijuana, but it is important to note that the law does not make it illegal for employers to fire workers who use marijuana while at their place of employment. In fact, in the only direct reference to employment, it states that "nothing in this law requires any accommodation of any onsite medical use of marijuana in places of employment." Thus, the law says nothing about whether marijuana use outside of the workplace can be used as grounds to terminate an employee. Advocates of employee rights in this regard cling to the provision which mandates that, "Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." The implicit argument is that employment is a right and it is being infringed if an employee is terminated due to legal use of prescription marijuana.

That discrepancy has already led to one lawsuit, filed last year in Suffolk County Superior Court. In that case, a woman who used medical marijuana claimed she was wrongly terminated from her job after she failed a drug test. The woman is arguing that the termination violated her rights as she uses marijuana to treat her Crohn's disease.

Examples from other states

While that Massachusetts case continues to work its way through the courts, it may be helpful to look at how this issue has played out in other states. In general, courts have tended to side with employers on whether an employee can be fired for marijuana use, even when such use is legal under that state law. As the Wall Street Journal reported last year, even in Colorado, which famously legalized recreational marijuana use, courts there have ruled that employees can still be terminated for testing positive for marijuana, regardless of whether such use of the drug occurs on or off the job.

The issue comes down to the fact that despite many states relaxing their marijuana laws in recent years, the drug is still prohibited according to federal law. As such, companies that wish to comply with federal law can often still prohibit marijuana use, even in states where such use is legal. Additionally, for industries that are subject to federal regulations, such as the trucking industry, or in professions where marijuana use could present a safety hazard, then there are reasonable grounds for employers to prohibit the use of marijuana by their employees.

Counsel and advice on employment law

The issue of marijuana use by employees is one that continues to work its way through the courts. While other states have definitively weighed in on this topic, it is important to emphasize that in Massachusetts the issue remains largely unresolved. Moreover, this area of the law may become even more muddled if the ballot measure to legalize marijuana is passed on November 8, 2016. Therefore, employers and employees who are involved in an employment issue regarding any marijuana use should contact an experienced law firm to guide the employer or employee through this uncharted territory. A law firm, such as Aceto, Bonner & Cole PC, that is current on the latest developments in employment law will be in the best position to provide soun d legal advice.

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