Can You Be Fired for Smoking Marijuana in a State Where It's Legal?

Unless your state specifically protects marijuana users from workplace discrimination, your employer can probably fire you for your legal use of marijuana.

With more and more states decriminalizing and legalizing the use of marijuana, many workers are wondering whether they can be fired from their jobs for using it legally.

Whether you can be fired for using legal marijuana depends on when and where you use it. It's safe to say that if you smoke marijuana while working, even in a state where it's legal, you can be fired. Of course, the same is true for alcohol: even though it's legal, you generally can't drink it at work.

Outside of working hours, the rules depend on state law and your employer's own policies.

Where Is Marijuana Legal?

With four more states legalizing recreational marijuana in 2020—Arizona, Montana, South Dakota, and New Jersey—a total of 15 states and the District of Columbia have legalized marijuana for recreational purposes. Moreover, 16 states have decriminalized the use of marijuana. Decriminalization means marijuana use isn’t punished with criminal penalties but through civil fines and mandatory drug counseling.

State Laws on Marijuana Use

State

Medical Use

Decriminalized

Legalized

Alabama

No

No

No

Alaska

Yes

Yes

Yes

Arizona

Yes

Yes

Yes

Arkansas

Yes

No

No

California

Yes

Yes

Yes

Colorado

Yes

Yes

Yes

Connecticut

Yes

Yes

No

Delaware

Yes

Yes

No

District of Columbia

Yes

Yes

Yes

Florida

Yes

No

No

Georgia

CBD Oil Only

No

No

Hawaii

Yes

Yes

No

Idaho

No

No

No

Illinois

Yes

Yes

Yes

Indiana

CBD Oil Only

No

No

Iowa

CBD Oil Only

No

No

Kansas

No

No

No

Kentucky

CBD Oil Only

No

No

Louisiana

Yes

No

No

Maine

Yes

Yes

Yes

Maryland

Yes

Yes

No

Massachusetts

Yes

Yes

Yes

Michigan

Yes

Yes

Yes

Minnesota

Yes

Yes

No

Mississippi

Yes

Yes

No

Missouri

Yes

Yes

No

Montana

Yes

Yes

Yes

Nebraska

No

Yes

No

Nevada

Yes

Yes

Yes

New Hampshire

Yes

Yes

No

New Jersey

Yes

Yes

No

New Mexico

Yes

Yes

No

New York

Yes

Yes

No

North Carolina

No

Yes

No

North Dakota

Yes

Yes

No

Ohio

Yes

Yes

No

Oklahoma

Yes

No

No

Oregon

Yes

Yes

Yes

Pennsylvania

Yes

No

No

Rhode Island

Yes

Yes

No

South Carolina

No

No

No

South Dakota

Yes

Yes

Yes

Tennessee

No

No

No

Texas

CBD Oil Only

No

No

Utah

Yes

No

No

Vermont

Yes

Yes

Yes

Virginia

CBD Oil Only

Yes

No

Washington

Yes

Yes

Yes

West Virginia

Yes

No

No

Wisconsin

CBD Oil Only

No

No

Wyoming

No

No

No

Medical Marijuana Use

Medical use of marijuana is allowed in 36 states and the District of Columbia. In these jurisdictions, doctors may authorize patients with serious medical conditions to register for a medical marijuana card that permits them to acquire and use marijuana to alleviate their symptoms. While patients who use marijuana for medical purposes aren’t subject to state criminal prosecution, marijuana use remains illegal under federal law.

State Laws Banning Discrimination Against Medical Marijuana Users

As of 2020, 19 states and the District of Columbia have enacted laws that prohibit discrimination against patients for using medical marijuana. These states are:

  • 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.

In these states, employees generally can’t be fired for using or testing positive for marijuana if they are using it for medical purposes. However, employees can be fired if they use marijuana during work hours or are otherwise impaired during work hours by marijuana use. Moreover, federal employers, contractors, and employers reliant on federal funding may terminate employees for using marijuana outside of working hours.

Note that a small number of states have passed laws requiring employers to make reasonable accommodations for workers using medical cannabis.

Recreational Use of Marijuana

Even in states where marijuana is legal or decriminalized, employers are generally free to enforce zero-tolerance drug policies. That leaves recreational marijuana smokers—and those who use related products such as vape pens and edibles—in something of a legal gray area. So far only one state, Maine, has granted legal protection to the off-duty use of recreational marijuana.

Some states have laws protecting employees from discrimination based on their use of "lawful products" while off duty. While these laws were initially intended to protect tobacco users, there is an argument that they should include marijuana users as well. (Admittedly, this argument is weakened by the fact that marijuana remains illegal under federal law.)

The bottom line is that in most states, your employer can fire or discipline you if you were using marijuana for recreational purposes, whether at work or away from work. In many states, you can be fired solely based on a positive drug test, although some cannabis-derived products, like CBD oils, often aren’t detectable by drug tests.

When Can Your Employer Fire You for Off-Duty Behavior?

Most employees in the U.S. work on an "at-will" basis, meaning they can be fired for virtually any reason (except for illegal discrimination and a few other exceptions) or for no reason at all.

Unless your state specifically protects medical or recreational marijuana users from discrimination, your employer is probably allowed to fire you for off-duty use of marijuana, even in jurisdictions where it's legal. In recent years, courts have generally sided with employers in these sorts of disputes, so employees should tread carefully.

Contact an Attorney

If you were terminated for using marijuana in your free time, you might want to consider contacting an attorney specializing in employment law. While it's true employers have wide latitude in deciding when to terminate employees, their discretion is not absolute. Some states and cities specifically protect marijuana users from this sort of conduct.

Your chances of success in a wrongful termination case will depend on the specific circumstances of your case. That's why it's a good idea to consult a lawyer for individualized guidance.

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