Is There Recourse for Employees Who Were Fired for Using Legal Marijuana?

You see the question all the time on online forums: “I smoke weed from time to time, and my employer tests for drugs. If my test comes up positive, can I be fired?”

The short answer is, yes. Even if you’re smoking legal marijuana, for instance for medical purposes, you can be fired. A recent case involves Brandon Coats, a Dish Network employee, who was fired for smoking legal marijuana. He lost at trial, lost on appeal, and is now waiting to have his case heard by the Colorado Supreme Court. Even his lawyer doesn’t hold out a whole lot of hope.

Coats’s employer had no problems with the quality of his work, admitted that he was never impaired while working, and was operating within the law. They still stood by their right to fire him.

How Is This Possible?

In the United States, employers have an ironclad right to prohibit marijuana use by employees. And if a person’s job requires drug testing under the DOT mandate, the position of the DOT is clear – 49 CFR Part 40, at 40.151(e) clearly states that medical marijuana, even when permitted under state law, is not a reason to permit an employee to continue on the job in the face of a positive drug test result.

North of the border, in Canada, a former employee of the Toronto Dominion (TD) bank was fired for using medical marijuana at work. David-George Oldham has chronic back pain and migraines, and the Canadian government has licensed him as a consumer of medical marijuana as of December 31, 2013. The bank fired him for smelling of marijuana at work. His direct managers, according to Oldham, had no concerns, and he smoked off company property. Citing his right to privacy, he refused to meet with HR managers regarding his marijuana use and also refused to provide proof that he was licensed to use medical marijuana. Some might argue that by doing this he became the author of his own misfortune.

The bank maintains that he was fired for failing to follow procedure, i.e. meeting with the HR department. Oldham insists that his firing was for marijuana use, plain and simple.

Oldham is now waiting for a decision from the Canadian Human Rights Commission.

The Final Word

In the United States, marijuana use, even if legal, can get a person fired. The jury is apparently still out in Canada.

Legal or not, the fact remains that marijuana is one of the most-tested-for drugs in the workplace. In the United States, even legal users will likely be tested, and fired, in the foreseeable future. Drug test technicians are still going to have a wealth of opportunities in the testing field for some time to come. In Canada, we’ll just have to wait and see.

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