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Can I Be Fired For Consuming Medical Marijuana?

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A question that I often hear is ‘Now that I have my medical marijuana card, I can’t be fired for failing a drug test, right?’ As with almost every medical marijuana question, the answer is ‘It depends on which state you live in.’ There are currently 14 states that have a medical marijuana program (Alaska, Hawaii, Washington, Oregon, California, Nevada, New Mexico, Colorado, Michigan, Montana, Maine, Vermont, Rhode Island, and New Jersey). Out of these 14 states, only Rhode Island protects against employer drug tests.

A patient can make an argument in Michigan, where the law states that a registered user can’t be subject to arrest, prosecution OR PENALTY IN ANY MANNER OR DENIED ANY RIGHT OR PRIVILEGE INCLUDING ACTION BY A BUSINESS. Later in the law it states “nothing in this act shall be construed to require an employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.” Is simply allowing a patient to consume their prescribed medicine ONE TIME in a 30 day period an accommodation? When I think of an ‘accommodation for ingesting marijuana in any workplace, or working under the influence,’ I interpret this to say that you are not allowed to eat brownies at your desk, hit the bong in your car on your break, or before work. Essentially, you can’t come to work intoxicated, or get intoxicated during the workday. BUT I DO NOT INTERPRET THIS LANGUAGE AS STATING THAT YOU CAN BE FIRED JUST BECAUSE YOU HAVE CONSUMED MARIJUANA IN THE LAST 30 DAYS AS YOUR DOCTOR SUGGESTED. I guess it just depends on how persuasive your attorney is, and how biased the judge is.

In every other medical state, the words ‘no accommodation’ are included in the organic legislation. Unlike Michigan, they don’t include conflicting language suggesting otherwise. ‘No accommodation’ means that you can get a medical card, but if your employer finds out, you can be fired, no questions asked. Medical cards protect against prosecution in a court of law; nothing more, and nothing less. Many people have tried to challenge this in court at the state level, and in cases in Oregon, California, and Montana, the court always ruled in favor of the employer due to the ‘no accommodations’ clause in the original legislation.

If you don’t believe me, here is a quote from Colorado Springs lawyer Kevin Donavon. “There is no prescription, marijuana prescription. It’s a recommendation by the doctor and if you have that recommendation that allows you immunity from prosecution,” Donavan said. “But nothing in the law prevents a user from losing his or her job after a positive drug test.”

One might argue that the ‘Americans With Disabilities Act’ protects medical marijuana patients. This act is FEDERAL, not STATE. In order to sue for a violation of this act, a person would be going to federal court, where they do not recognize the medical properties of marijuana. The Department of Justice will not prosecute you for criminal offenses if you are in compliance with state medical marijuana laws, but that is not the same as them fighting for you to get your job back. The Americans With Disabilities Act protects against discrimination based off of a disability, not discrimination stemming from a ‘state recognized’ medicine.

So what can be done to change this? If every medical marijuana state went back in and changed the organic legislation to look like Rhode Island’s (in regards to accommodations), patients couldn’t be fired for failing a drug test due to cannabis. This requires lobbying state legislators to revisit the original bill, or getting enough signatures to put the revision on the ballot via the initiative system, at which point voters would have to pass it. This would change things even in states where court decisions have been ruled in favor of the employer. When the organic legislation is modified, all court rulings that pertain to the old legislation are voided. Check out the link below if you want to see another article about this issue.

http://www.inc.com/news/articles/2010/02/marijuana-law-confusing.html

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9 Comments

  1. In colorado /Iowa/ and Other states CDL revocation happens when Law enforcement supects Marijuana Use in a Driver, If the Driver Refuses a sobriety test it is a automatic revocation of lIscense. In colorado it does not matter if you win in court you still lose your drivers license for 12 months and have to request a Adminstrative hearing. At that Hearing it does not matter if you have a MMj Card, As Commercial Driver you Cant use that for your defense, because you still lose because of the Zero Prescription Drug Policy period..

  2. This changing of Legislation is great but it will never Change Rules that Governs Truck Drivers and Transportation workers, because Congress gave them the power to regulate CDL drivers without Congressional approval..

  3. In Colorado all employment is a At will state, which means your employer can fire you for just Looking Crosseyed at them or for even Just farting. Kim Ryan in the article is wrong…

  4. Regulation wont Get Changed for the CDL driver , It will get more Stringent. Alcohol Level is at 0.04 Zero tolerance on Marijuana because A prescription from a Doctor is a Recomendation from Him. In court the doctor will testify that he recommend you to use the prescription, He will testify that you are not going to die from your condition so its your choice wether you use it or not…

  5. Waiting In Maryland on

    I would have to say that the “employer” should need to prove to a court that the employee was actually intoxicated when tested, since thc can stay in your system so long. The injured employee could have used marijuana a week or even longer prior to the incident and it’s use would have no bearing on the accident whatsoever – Big Pharm companies have a lot to lose with medical marijuana legality – it allows for patients like me, to stop taking 300 mgs of morphine daily, for an alternate medicine that I can grow myself – and their countless other drugs people wouldn’t need if they could use what they choose for their conditions –

  6. well this is dpresing news. but – glade i read it. now , lets chang it. i think any cdl driver worth his salt wont be getin medicated be for or during driving or hrs of service driving time. but when there home and have days off or even a night say 8 hrs sleep there shouldent be a problume . what aboute that real safe clouse in the dot comic book that says no drinking fore hrs before driving on duty?? a woping 4 hrs.
    d hrs buffer zone fore alcahole and there worred abote some weed before bed ? or on the weekends? bull shit.

  7. Even though state law gives some protection medicinal patients, due to federal law, judges have decided in favor of the employer in almost every ruling. Employees that test positive on a drug test have very little protection from firing. With a solid precedent from a number of other firing cases, most judges will continue to side with the employer unless the law changes.
    I found this presentation from Green Streets and Chuck Passaglia helpful, as it takes a case by case look at judicial decisions on medical marijuana in the workplace and how the law is currently interpreted for employers, managers, and employees that are medical marijuana patients: http://my.brainshark.com/Waiting-to-Exhale-Managing-Medical-Marijuana-in-the-Workplace-424219265?tx=amb_bb

  8. Here’s a very confusing article about how Colorado handles the situation:

    http://www.9news.com/news/article.aspx?storyid=132650&catid=188

    From what I can tell from the article, ‘Labor Law Expert Kim Ryan’ states that you can’t be fired from work in CO if you have a medical card.

    When you go to the ‘Safe Access’ Page for Colorado, and you click on the employment FAQ’s, it’s not there. Look for yourself:

    http://sensiblecolorado.org/mm/faqs/legal-info/#top

    So as I kept digging, I found what seems to be paydirt:

    http://www.civilliberties.org/mmarworkplace.html

    “Currently, and as a result of the critically important U.S. Supreme Court decision Alberto R. Gonzales, Attorney General, et al. v. Angel McClary Raich, et al., No. 03-1454 (decided June 6, 2005, 125 S.Ct. 2195), in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result. (This case is generally referred to as Ashcroft v. Raich or Gonzales v. Raich.) ”

    So unless there was an amendment to the medical marijuana legislation in CO after 2006, or someone out there in cyberspace can find more difinitive proof, I am going to have to call BS to ‘Labor Law Expert Kim Ryan.’ If anyone else finds anything, post it!!