Employers Advised to Hold Off on Testing for Marijuana Use

Medical marijuana is legal in 29 states, with recreational pot legal in 8. With the rise in legalization comes a rise in usage. However, weed has not been completely legalized. There are many rules and restrictions governing its usage and growers and cultivators of medical marijuana have to adhere to strict guidelines. The cultivation process is going to be increasingly taxed and monitored at the state and federal level.

Marijuana and Employment

Many medical weed holders have actually lost their jobs for showing up to work stoned. Your employer can fire you for using a legal substance. Like alcohol, you cannot overuse the substance and show up to work. State law governs the policies upon which employers may terminate an employee’s contracts, and coming into work intoxicated is one area where dismissal is regarded as acceptable. Nothing in the current legislature prevents employers from firing an employee due to cannabis use.

Employers do not have any obligation to tolerate cannabis use, even if you have a doctor’s note. And this makes perfect sense in many ways. While bar staff and sales clerks may not be tested for weed  usage, it is more than appropriate to make sure neurosurgeons and accountants are not showing up to work high. The potential for error is too great and in these jobs mental sharpness is required. The employees need to be sharp and attentive in these roles, especially as they could be putting others at risk.

Just because weed laws are passed does not mean that weed is welcome in the workplace. Most employers are sticking to their pres creening drug tests to make sure that potential employees are marijuana free. In Massachusetts, the legislature states:

“the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees”

Employers Advised to Hold off Testing for Pot Use

Despite the above, a Maine official recently stated that employers should not test for marijuana because state law does not allow employers to fire employees for using it. The legalization of recreational marijuana was passed in Maine last November for those over the age of 21. This is specific to Maine and even there it is not clear cut. The vast majority of case law as well as legislature allows employers to fire employees for marijuana use, even where recreational marijuana is permitted.

This phenomenon is possibly just a delay in adjustment to a more modern environment. The idea that someone could be a less efficient worker due to testing positive for marijuana could well be called a form of discrimination. It will be interesting to look at future studies showing how marijuana consumption increases productivity and creativity in certain industries and areas. With these studies, it will no longer be possible to refuse somebody a job due to marijuana use. And it is both illogical and unjust to refuse somebody a job who has no choice but to take medical marijuana for personal conditions.

The case can be argued either way. But it is safe to say that it is at the employer’s discretion to hire or fire someone who uses marijuana, especially in high risk industries or sectors involving attention to detail and no room for sloppiness. This rules out much of the working world. It could perhaps be deemed discrimination if a marijuana company fired an employee for being stoned on the job.

One survey found that up to 70% of employers conducted drug tests at least once a year, and the Federal government requires drug testing for some types of workers, especially in the transportation industry.




With recent legalization, more and more people are carrying some THC with them to work in some form or another, particularly those with more relaxed roles in the service sector where being relaxed is more important than being present and productive.

Can I be Fired for Cannabis in the Workplace?

The bottom line is that individuals can still be fired for testing positive for pot, whether or not productivity was actually impaired. And this is really not such a bad thing, and no different from being fired for showing up to work drunk. If it impairs the work that was contractually agreed to by a significant degree, there really is no case for argument. As wonderful a substance as marijuana may be, do you really want to live in a world where neurosurgeons, accountants, attorneys and police officers are allowed to go to work drunk and stoned?

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