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Marijuana and Employment: What to do if Marijuana is Legal in your State

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Marijuana and Employment: In the last decade, the use of marijuana has changed dramatically across the country. What could at one point lead to jail time and judgement by your peers eventually proved itself to be useful for medical treatment, and in some states even approved for recreational use. Unfortunately, the use of marijuana can still have negative impacts on your life so it’s important to understand what rights you have at a state level, federal level, and with your place of employment.

The laws surrounding marijuana vary greatly depending on where you live. Close to 30 states have laws allowing use in some capacity, and 8 have passed laws to allow it for recreation. Where most people run into problems with these laws is when it comes to marijuana and employment. Many people have learned the hard way that even though your state is saying you can participate legally, your job may have a different view.

In Washington state the law does not specifically address if an employer can discriminate against users. Tacoma criminal defense attorney Mark Treyz advises that while criminalization laws have changed that doesn’t mean lawyers will have the same success fighting against the loss of employment.  In California Proposition 64 clearly states that employers can drug test applicants before and after hiring them. In 2010 when California voted on Proposition 19 a clause was added saying employers were not allowed to discriminate against workers for marijuana use, and many believed that is why it was voted down.

It’s something that the tobacco and alcohol industry are all too familiar with. Many corporations have started to deny hiring workers that drink or use tobacco, even if they do not use it during working hours. It seems that the marijuana industry is now going to face the same problem.

Per the Americans with Disabilities Act (ADA) addiction to alcohol is considered a disability. This designation means that employers can only test for alcohol if they have reasonable proof that someone is under the influence at work. It also requires an employer to provide accommodations for the disability by allowing them to attend AA meetings or a longer treatment program without consequences.

This is where it gets confusing for the marijuana industry. Addiction to illegal drugs is not covered as a disability under the ADA. Employees using prescription drugs to treat a disability are protected under the ADA though, so many people with a marijuana prescription may think they are covered. However, when this has been fought in court one important factor has always ruled against the employee – marijuana is still illegal under federal law. In 2011 the Washington Supreme Court ruled that a call-center had the right to fire an employee for using marijuana. The employee held a valid medical marijuana card but the court had to rule in favor of the employer since federal law does not allow any use or possession.

Federal employees are exempt from any recreational or medical laws and are not allowed to use marijuana regardless of where they live. Any company receiving federal funds are also subject to employee drug testing. Many other industries such as the NFL, NBA, and Department of Transportation have also publicly warned employees that marijuana usage will not be tolerated.

For employers, this is still not an easy decision or process. If a company did not have a drug policy in place prior to legalization in their state many are being asked to provide clear and fair notice to employees and update their employee handbook about marijuana and employment. Since marijuana is stored in fat cells the rate at which it metabolizes out of the body varies based on many factors. This can make it difficult for employers to have a relaxed stance on use since it is hard to prove if the drug was used on Saturday night or before coming into work for the day. Many people are also taking their cases to court because they think their right to privacy is being violated by having employers find out they are using marijuana to treat a specific condition. The decision usually ends up being that an employee must decide to reveal the condition or turn the job down completely.

It’s important for users to understand what rights they have when using marijuana and employment. These rights vary dramatically depending on what state you are in, and are not protected under federal law. They are also most likely not protected by your employer. If an employee is fired for using illegal drugs they will most likely not qualify for unemployment benefits. Therefore, make sure you’re still doing your research to project yourself and your employment down the road.  

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