With nine states having legalized the recreational use of marijuana, and 29 states legally protecting the use of medical marijuana, can an employer deny employment to a job seeker who tests positive for marijuana or, for that matter, terminate an employee for marijuana use?
In states where employment is “at-will,” meaning companies can dismiss workers without a “just cause,” firms likely can prohibit marijuana consumption regardless of state or federal law. Some states are also providing “outs” for employers. For example, California’s Proposition 64, which legalized recreational marijuana use, says California employers can penalize workers who test positive for marijuana use, whether or not they were high on the job.
Furthermore, with recreational marijuana use still illegal at the federal level, employees of federal agencies, as well as workers in federally regulated industries, such as transportation, banking and health care, are prohibited from using marijuana—even during off-hours. Employers outside of those industries should stay abreast of changes in state laws, including not only marijuana usage laws but also drug-testing laws.
Firms in states where marijuana use is legal—whether for medicinal or recreational purposes—should not take adverse action against a candidate without consulting legal counsel. (Ten states have “compassionate care” statutes that allow marijuana to be used for medical reasons. Under these laws, employers generally cannot disqualify someone from work because that person tested positive for marijuana.)
Barada has always urged companies to develop and maintain comprehensive, legally acceptable drug testing policies. As laws over marijuana legalization continue to evolve, it will become increasingly important for these policies to address marijuana use.