Legalizing Marijuana – Off-Duty Use – An Employer's Quandary

More and more cities and states are legalizing the use of marijuana for medical and recreational use. The good news is that means in those jurisdictions the local and state police will not arrest you if your use conforms to the local/state law-medical use states require a prescription and recreational use laws usually limit the amount of marijuana one can possess. In addition, federal prosecutors, at least under the current administration, will not prosecute you for use which is legal under state and local laws.

Now the bad news. Marijuana use is still illegal under federal law, 21 U.S.C. § 801 et seq., since it is listed as a schedule 1 controlled substance. That means its use is not protected by the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA") because the ADA does not protect the current use of an illegal drug. Moreover, most employees are at-will employees, so they can be fired for good cause, bad cause, or no cause. Thus, if an employer wants to fire employees who use marijuana away from work, it is likely that the employer can legally do so.

That said, time often proves that the law is not always as clear as it seems, and courts can apply unexpected interpretations to statutes. Most lawyers know never to say never. So employers may be cautious at the beginning of this new stage in the history of marijuana use and the law. We have come a long way-from the days when marijuana use resulted in 25-year prison sentence, to now its use is actually legal under some local and state laws. Where the future will take use remains to be seen.

Some may predict that the President or Congress will decriminalize marijuana use on the federal level. The federal controlled substance abuse law allows the Attorney General to change the schedule status of drugs, but that requires medical certifications which are unlikely to be forthcoming. 21 U.S.C. § 811. The Congress could of course modify the federal statute to legalize marijuana under federal law, but with a Republican House and Senate that will not occur during the next two years, and has yet to even gain much support with the Democrats.

So where could changes occur? Well, wherever employees are not at-will employees, the situation could change, for example, union contracts usually only allow employees to be fired "for cause." The unions could negotiate a collective bargaining provision which excludes off-duty marijuana use from a "cause" which justifies termination of employment...