Due to the ever changing laws surrounding the legality of marijuana, many of our hospitality clients have recently asked us whether it is lawful to terminate an employee who has tested positive for marijuana.  The answer varies greatly depending on the state in which you are located.  

States continue to pass legislation legalizing marijuana use for specific purposes.  On July 5, 2014, New York became the twenty-first state along with the District of Columbia to legalize marijuana use for certain medical conditions—joining Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Vermont.  Two other states, Colorado and Washington, have legalized recreational marijuana use for individuals who are 21 years old or older, and Alaska and Oregon currently have similar legislation pending.

Most state laws legalizing marijuana do not address the employment issues implicated by these statutes.   Courts in several of these states have held that the protection afforded under these statutes is limited to the decriminalization of marijuana.  Therefore, courts have generally upheld employers’ right to discipline employees, including terminating their employment, when the employees’ marijuana use violates drug-free workplace policies.  However, some states, such as Arizona, Delaware, and Connecticut, prohibit employers from terminating an individual’s employment or failing to hire an applicant solely based on a positive drug test result.  Consequently, employers in those states should proceed cautiously when deciding whether to discipline an employee or fail to hire an applicant based on marijuana use.

Employers taking action against employees who have tested positive for marijuana can also run into issues with other state statutes, such as those prohibiting employers from taking adverse actions for lawful off-duty activities.  For example, Colorado prohibits an employer from firing an employee for lawful off-duty conduct.  Thus, even if an employee tests positive for marijuana, he can claim he is protected from termination, so long as his use of the drug occurred during non-working hours.  At this point, it is not clear whether such an argument will be successful.  So far, there has only been one Colorado case, Coats v. Dish Network, L.L.C., addressing this novel legal question, and the Colorado Court of Appeals affirmed the employer’s right to fire an employee for off-duty medical marijuana use.  However, the Colorado Supreme Court granted review of the case recently, so Colorado employers should monitor this case closely.  Therefore, employers in Colorado and other states that prohibit discipline for lawful off-duty activities should be careful when penalizing their employees for off-duty marijuana use.

Hospitality employers also need to be aware of potential violations of the Americans with Disabilities Act (ADA) associated with medical marijuana.  Employers with facilities in states that allow medical marijuana use may need to provide a reasonable accommodation under the ADA for employees with a valid doctor’s authorization.  For instance, the New York statute permitting medical marijuana use automatically classifies every individual who is considered a Certified Patient as disabled.  Therefore, New York employers must engage in an interactive process with the employee to determine whether they need to provide the employee with a reasonable accommodation.  Employers in other states may have similar obligations.

Employers should continue to carefully monitor legislation in their states as the laws continue to evolve.  To ensure legal compliance, employers should rewrite their workplace policies to include marijuana in their drug testing policy and state the potential consequences of an employee’s marijuana use.  Finally, in deciding whether to terminate an employee for marijuana use, an employer may want to focus on the employee’s impairment on the job and approach the situation in the same way as it handles an employee’s impairment from alcohol or prescription drugs.