Medical marijuana use and testing positive — Denied employment?

Dear Alice,

Can you be denied employment for having a medical marijuana license and showing a positive or failing a drug test?

Dear Reader,

From sea to shining sea, individual states in the US are sorting out laws about medical marijuana (and in some cases recreational marijuana). Your question is likely a common one, as marijuana laws and norms have changed pretty drastically over the past few decades. Unfortunately, whether or not your medical marijuana card will fly at work isn't just dependent on whether your state has legalized medical or recreational marijuana. For more on the nitty gritty details, read on!

Currently, 19 states have banned employers from treating employees differently based on medical marijuana use: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Vermont, and West Virginia. Most of these laws do state that the employee must be an official medical cardholder for protections to apply. Maine and Nevada take these laws one step further and also protect recreational marijuana users from workplace discrimination, with New York City, San Francisco and Washington D.C implementing similar legislation on a city-wide scale.

Even if you're in a state with medical marijuana protections, it's still possible you'll be asked to submit a drug test before you're offered a position or during your employment. If you test positive for marijuana on a screen like that, your employer's response will depend on when the test was administered and on specific state laws. In states with medical marijuana employment protections, it's more likely that you won't have a problem with your employer, but in legalized states without employment protections, if your job offer is contingent on a negative drug test, your employer can likely retract the offer, even if you've only tested positive for legal, medical marijuana. In any state, your employer may also keep the right to subject employees to a drug test if they suspect that they're under the influence of drugs at work — but these tests must be administered fairly and without targeting employees based on any personal characteristics such as race or gender. Your employer may also require a marijuana-free workplace, which might exclude you from applying or being hired at all. 

It may seem unfair, or at least contradictory, that employers can control marijuana use even in states where it's legal for medical or personal use. Why are employers opting for the zero-tolerance approach? To put it simply, there appears to be a type of catch-22 with marijuana laws: any marijuana use at all is still illegal under the federal government’s Controlled Substances Act, regardless of individual states’ laws. The federal government currently permits states to implement their own marijuana laws and won't go after users in states that have chosen to legalize it. Regardless, this catch-22 means that employers aren’t necessarily required to provide protections for employees. Long story short: if you test positive for marijuana on a drug test, it’s still possible that your employer could choose to fire or penalize you. Additionally, marijuana use is still forbidden for employees of the federal government and some federal government contractors, regardless of the state the position is in.

These federal classifications remain the basis for many workplace rules and are legitimate legal defenses when employers are accused of discrimination. Several state Supreme Court decisions have upheld an employers right to keep a marijuana free workplace, including in Colorado, Washington, California, and Oregon. On the other hand, rulings in states such as Rhode Island and Massachusetts more recently have favored workers.

It all boils down to where you live, and what legal protections apply to you today. Ultimately, the best way to determine this may be to talk to your potential or current employer, if at all possible. If that's not an option, your health care provider or local government may have good, up to date information on the subject. 

Wishing you the best in your job hunt!

Last updated Sep 02, 2022
Originally published Dec 12, 2014

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