Can I Get Fired For Smoking Legal Marijuana?

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"Neither being unemployed nor applying for unemployment insurance is, by itself, a legally sufficient reason under the Constitution to subject a citizen to government-operated drug testing. " - National Employment Law Project

Reform is spreading like crazy all over America. Parts of America that were once thought to be ‘off limits’ for reform are now ‘in play.’ Over 21% of Americans now live where voters have approved recreational marijuana legalization. Over half of the states in America (28 to be exact) have legalized medical marijuana either at the ballot box or via their legislatures. The most recent Gallup poll found that one out of every eight adults in America consume marijuana regularly, and 43% of Americans of adults say that they have tried marijuana at least once.

But just because marijuana is legal to possess, consume, and/or cultivate in more parts of America that ever before, there are still many ways that marijuana is still prohibited, even in states that have voted to legalize. A prime example of that is marijuana and the workplace. I get asked quite often whether or not someone can be fired for consuming legal marijuana. Sadly, the answer is yes, you can absolutely get fired for consuming legal marijuana.

At the crux of the issue is American employment laws. There are state laws regarding employment on the books in every state, but federal employment laws supersede those state laws if/when they conflict. Since marijuana is still a banned substance according to federal law, an employer can rely on federal employment laws for justification for firing someone when they fail a drug test for marijuana.

Federal employment laws are a two edged sword. The battle between state and federal employment laws were in full swing during the Civil Rights Movement of the 1960’s. In order to prevent discrimination in the workplace, sweeping changes were made to employment laws in America. The issue was no longer left up to the states. So by the time medical marijuana laws were passed in America, followed by recreational marijuana laws, employment laws had long been in the hands of the federal government.

That’s not to say that people haven’t tried to sue when they were terminated by their employer. In a number of cases across the country, medical marijuana patients have challenged their terminations in court, and lost every time. There have been some employment based victories, just not ones that restore a person’s position with a company. In New Mexico a medical marijuana patient challenged a worker’s compensation denial to get reimbursed for medical marijuana. New Mexico’s Court of Appeals ruled in favor of the medical marijuana patient.

Marijuana consumers deserve to be treated the same as consumers of any other legal product. I’m not advocating for people being allowed to be intoxicated while at work, but just as I can take cold medicine to treat my condition, so to should I be able to consume non-intoxicating forms of cannabis to help treat whatever condition(s) I may suffer from. Also too, just as I can consume alcohol ‘off the clock,’ so too should I be able to make the safer choice and consume cannabis when I’m not at work.

It’s worth noting that just because an employer can fire someone for consuming legal cannabis doesn’t mean that they have to. I have worked for employers that treat marijuana like alcohol, so you can’t bring it to work and can’t consume it before work, but you can use it off of work hours, away from the workplace. I have also worked for places in Oregon that have a zero tolerance policy towards marijuana, even though marijuana is legal in Oregon for recreational purposes.

People should be able to be their ‘whole selves’ in their workplace. People shouldn’t have to hide the fact that they consume marijuana. Marijuana is 114 times safer than alcohol, and if responsible adults can consume alcohol and not let it affect their performance at work, the same should be true for marijuana and workplace laws should reflect it. Pushing for marijuana reform in the workplace is part of what I have been referring to as the ‘second phase of legalization.’ The battle isn’t over when a state votes to legalize marijuana. People getting fired in legal states with no way to effectively fight it is proof of that.

Johnny Green
About Johnny Green 842 Articles
Johnny Green is a cannabis activist from Oregon. Johnny has a bachelor's degree in public policy, and believes that the message should always be more important than the messenger. #LegalizeIt #FreeThePlant