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If You Have a Prescription for Medicinal Marijuana, Can You Be Fired for Failing the Drug Test?

If You Have a Prescription for Medicinal Marijuana, Can You Be Fired for Failing the Drug Test?

Posted by Kathy Harrington-Sullivan | Apr 01, 2014 | 0 Comments

The conversation surrounding the rights of employees engaging in legal conduct off-premises has expanded from an era of considering the use of alcohol and cigarettes to the controversial use of marijuana and social networking sites. While certain laws are in place to protect employees and their right to engage in “protected” conduct –discrimination charges, wage violations, worker's compensation claims, disability accommodations, participation in union activities – not all lawful activities protect an employee.

With an increase in medical marijuana use and some states even legally selling marijuana, the hot topic has been whether or not an employer can lawfully terminate an employee based on a failed drug test. Some states, such as Rhode Island and Arizona, prohibit employers from discriminating against registered marijuana patients. While on-premise consumption or possession is grounds for termination, the use of the drug is permitted outside of work. But that law doesn't extend to all states. In some cases, living the high life can certainly bring high costs to potential employees in states such as Washington. This state has seen cases like Roe v. Teletech Customer Care Management (2011) where courts have ultimately dismissed lawsuits filed by individuals claiming employer's have retracted an employment offer based on failure to pass drug screening tests.

Many states have considered the issue of employees and their rights to bear firearms. A number of states – Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, North Dakota, Oklahoma, Utah, Wisconsin among them – protect employee's rights to bring firearms onto company property or the right to transport firearms in their vehicles. As long as the firearm is legal, the employee has the right to be packing heat and not land in hot water for doing so.

An update to a Facebook status might just result in an update to an employment status in some states. Some cases have shown just cause in grounds for termination because of the impact the employee's use of social media has had on the employer's business. One example is the case of a teacher posting negative words pertaining to work on her Facebook page. Even though she did so while off-duty, her actions ultimately resulted in her dismissal on grounds of undermining her working relationships with her administration, her classroom patterns and her student's parents.

The issue of nicotine use and employees continues in many states. While lawsuits have been filed against employers and subsequently dismissed because an offer of employment was withdrawn due to a potential employees use of nicotine, there are many states that do protect smokers. States such as Connecticut and Wyoming protect an employee's rights to light up as long as they are off campus.

Just as employees must dutifully follow the law, so must employers when it comes to grounds for employment, discipline or termination. Even with company policies written and in place, the writing on the wall, per se, is not always clear. Careful understanding of legal rights for both employer and employee is necessary to ensure that the conduct occurring off-duty and off-premise is not negatively impacting either party.

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany and manages the firm's case evaluation team. Because knowledge truly is power, Kathy and the Atlanta employment attorneys on her team regularly consult with and empower potentia...

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