Can You Lose Your Job for Smoking Legal Marijuana?

All around the United States, policies and public opinion surrounding marijuana are shifting. To date, 22 states allow medical marijuana use, six states have medical marijuana laws pending legislation, and two states, Washington and Colorado, have legalized it outright. However, this substance is still illegal according to federal law, and many employers in these states continue to test for it. But can medical marijuana patients, and recreational users in Colorado and Washington, get fired for testing positive? So far, the answer is yes. Drug testing in the workplace has been commonplace for about 30 years. In the 1980s, as part of the War on Drugs, the Reagan Administration recommended all employers start drug testing. As a Schedule I drug, marijuana was naturally included on the list of drugs to screen for, and it is still on nearly every drug testing kit today, along with methamphetamine, heroin and cocaine. Drug testing kits are fairly simple. They require a small sample, usually urine or saliva, though sometimes blood or even hair are used, and once the sample is collected, it is sent out to laboratories where it is analyzed for markers of drug use. Each drug test costs an average of $40. While fairly accurate, these tests are not, critics point out, very fair to legal marijuana users. Unlike most other drugs, both legal and illegal, a marijuana user can test positive more than a month after last using. Remnants of THC stay in the body far longer than heroin or alcohol, which usually leave the body without a trace after a day or two at most.

Drug Testing Statistics

  • 57 percent of employers require pre-employment drug tests
  • 14 percent of employers require pre-employment drug tests only for safety-sensitive positions
  • Nearly 40 percent of employers require random drug screenings
  • Nearly 60 percent of employers require drug testing after an accident or incident
  • Approximately 50 million drug tests were performed in the U.S. in 2008

A Medical Marijuana Patient Fired for Cannabis Use

 Several court cases have cropped up in the last decade relating to a medical marijuana patient’s termination at work after testing positive for marijuana. One of these seminal cases was Casias vs. Wal-Mart in 2012. Legal medical marijuana user Joseph Casias was an “employee of the year” at a Michigan Wal-Mart. He had passed an initial drug screening, but failed to pass a drug test mandated by the corporation after an on-the-job injury. Suffering from a brain tumor and chronic pain, Casias sued Wal-Mart but his case was dismissed for “failure to state a claim.” He appealed to the Sixth Circuit Court of Appeals, which reaffirmed the dismissal, stating that while his legal right to medical marijuana protects him from prosecution, it does not offer protection from his employer’s policies. The ruling of Casias vs. Wal-Mart and similar cases indicates it is ultimately up to the employer to decide whether legal marijuana users are an exception to company drug policies. It will take a change in medical marijuana laws to offer these patients legal protection. The same applies to recreational users in Colorado and Washington, where, experts say, employers still “hold all the cards.” At their discretion, many employers may consider halting tests for marijuana in Colorado and Washington, or some may make exceptions for medical marijuana patients in other states. However, as long as marijuana continues to be illegal under federal law, both legal recreational users and medical marijuana patients like Casias are still technically breaking the law, leaving them vulnerable to termination. Experts agree that it will take full legalization at the federal level in order to change current workplace drug policies, but only time will tell if or when that happens.

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