With more and more states 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.
As of 2023, a total of 21 states and the District of Columbia have legalized marijuana for recreational purposes. They are:
As of 2023, a total of 37 states and the District of Columbia have legalized marijuana for medical purposes. They are:
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.
As of 2023, more than 20 states and the District of Columbia have enacted laws that prohibit discrimination against patients for using medical marijuana. These states include:
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.
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 a few states have 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, they have since been amended or interpreted to include legal use of marijuana.
The bottom line is that whether your employer can fire or discipline you if you were using marijuana for recreational purposes depends on the laws in your state. 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.
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.
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.