Yarelyn Mena and Edgar M. Rivera, Esq.
Courts in the United States generally recognize that marijuana use is a legitimate reason to terminate an employee. However, with an increasing number of states now legitimizing both recreational and medical marijuana use, employers and employees alike are left with uncertainty as to the potential repercussions of marijuana use with respect to employment.
Twenty-three states and the District of Columbia have legalized medical marijuana. In addition, in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program. Medical marijuana use also implicates federal and state disability laws. Additionally, a medical marijuana user may be considered disabled if he or she has a disability under the Americans with Disabilities Act (ADA) or similar state statutes. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability. As such, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program.
Marijuana laws, however, very state by state. On the one hand, marijuana laws in Alaska, Colorado and the District of Columbia are clear that employers may prohibit the sale, possession, and transfer of marijuana or providing an accommodation that would allow marijuana use in the workplace. On the other hand, the laws in Oregon and Washington are silent as to the impact of recreational marijuana in the workplace. Thus far, courts that have addressed recreational marijuana and employment upheld employer termination decisions. For example, in a recent case, Coats v. Dish Network, the Colorado Supreme Court heard the arguments of an employee who was terminated after failing a random drug test finding marijuana in her system. The employee contested the termination since she had a medical marijuana license. In a unanimous decision, the court found in favor of the company, deferring to federal law that classifies marijuana as a controlled substance. Since Colorado has adopted the rule that employers can terminate at their discretion concerning marijuana use, the issue may result in a different outcome depending on the state. As various states are met with this issue, hopefully what is allowed will be more certain.
If you have any questions or concerns about New York marijuana use as it pertains to your employment, please contact The Harman Firm, LLP.