Can You Be Fired for Using Medical Marijuana?

In two recent cases, the EEOC settled with employers who had fired workers because of positive drug tests for prescription drugs. But in states where medical marijuana is legal, can employers fire employees who test positive but have prescriptions for the drug?

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Drug Tests & Disability

Under the Americans with Disabilities Act (ADA), of course, employers are forbidden from discriminating against workers based on their disabilities.

Nor can an employer discriminate against an employee based on its perception – via a drug test for legal prescription drugs or otherwise – that an employee has a disability.

The two recent cases – one in Georgia and the other in Tennessee – involving prescription drug use and disability show very clearly that an employer violates the ADA when it tests employees for legal drugs and then fires them based on those test results.

But medical marijuana presents a different situation, the EEOC tells Lawyers.com.

Free to Fire

“The ADA plainly states that current use of illegal drugs cannot be considered a disability,” according to the head ADA lawyer at the EEOC.

“Because federal – as opposed to state – law does not recognize the medical use of marijuana, current use of marijuana, even if permitted under state law and prescribed by a physician, would still be considered illegal drug use under federal law and an employer would be free to fire an employee for that reason,” says the EEOC lawyer.

That means that even in states where medical marijuana is legal, employees with those prescriptions are not protected from losing their jobs by the ADA.

Reasons Matter

However, there is a kind of exception that goes to the reason behind the firing.

“In the highly unlikely instance of an employer seizing upon the medical use of marijuana to fire an employee due to an underlying disability, this would be illegal,” says the attorney.

The attorney gives the example of an employer learning that a worker was prescribed marijuana for cancer pain and firing her in order to avoid its health insurance premiums going up because of her expensive cancer treatments.

In that case, if the employer “takes no action against other employees who are recreational marijuana users, that would be an illegal, disability-based employment decision,” explains the attorney.

But, adds the attorney, as long as the employer treats all marijuana users the same, the fact that one was using it for a disability would not protect her under the ADA from being fired, “as he or she would be considered a current user of illegal drugs under federal law.”

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