Cities and states across the country have legalized marijuana, decriminalized simple possession, or legalized the use of medical marijuana, as is the case in the state of California. However, one question that tends to arise is if marijuana is legal to use, can an employer fire an employee for legally using marijuana? Unfortunately, in many cases, it appears the answer to this question is yes.
According to a recent news article from the Boston Globe, a woman whose employer fired her for using marijuana is now suing her previous employer for wrongful termination.
The woman interviewed as part of this story was elated when she was hired at what was going to be her dream job with a marketing agency. Her elation quickly turned to anger and despair when she was fired her first day on the job because she had failed a pre-employment drug trust. She was told she failed the drug test because she had tested positive for marijuana. At first, she was more confused than angry, because medical marijuana is now legal in Massachusetts and is, therefore, not an illegal substance. She had also disclosed her use of medical marijuana during a job interview. She told her prospective employer she takes marijuana as treatment for a digestive disorder, and this treatment is legal and approved by her doctor.
Following her termination, this woman filed a lawsuit alleging wrongful termination and employment discrimination, as she was fired for doing something that is not illegal. This is believed to the first case filed in that state for wrongful termination as result of a positive for test for marijuana.
As this is a new issue in her state, or as lawyers and judges call it, and issue of first impression, it is normal procedure to look at what other states have done in a similar situation as persuasive precedent on what to do in the instant case. This is exactly what lawyers are doing in her case.
As our Orange County wrongful termination attorneys can explain, this issue has already been addressed in California, since medical marijuana has been legal since 1996. Unfortunately for many medical cannabis patients in California, the courts may allow an employer to terminate an employee for testing positive for marijuana, even if that employee has a valid doctor’s recommendation letter allowing him or her to use medical marijuana or cannabis products.
However, it should be noted, the facts of every case are different, and you should speak with an experienced attorney about the facts relevant to your particular situation to see if you have a valid claim for wrongful termination. In reality, there is much ambiguity over whether an employer can legally fire an employee for legally using marijuana. Some states have specifically said they cannot, and others are silent on this issue. The situation can become even more problematic in an industry that is regulated by the federal government. For example, some occupations involving use of heavy machinery or driving a commercial vehicle require routine and random drug testing, and an employee can be fired for failing a drug test.
On the other hand, there is often a problem determining whether a person has THC metabolites is his or her system from prior use, or if a person is currently under the influence of marijuana. A blood test or urine test may not actually be very helpful in making such a determination, which is why police try to rely upon physical clues to determine intoxication in DUI investigations.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Woman fights medical marijuana firing, May 23, 2015, Boston Globe
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