Despite state laws, employees can still be terminated for testing positive for weed.
By many accounts, Brandon Coats was a star employee, but that wasn’t enough to save his job.
Coats, a quadriplegic, used medical marijuana after work to control painful muscle spasms. He claims he was never late and never under the influence on the job, and was in the top 5 percent of performers in the Dish Network corporate sales department.
However, that didn’t stop Dish Network from firing Coats when he tested positive for marijuana. In June 2015, the Colorado Supreme Court ruled in Coats v. Dish Network that businesses can fire employees for using marijuana because the drug is illegal under federal law, despite the fact that it is legal in the state.
On November 8, marijuana won big at the polls. Four states legalized the recreational use of pot and four more approved or eased access for medical use. With recreational pot allowed in California and seven other states (plus Washington, D.C.), 21 percent of Americans can now light up legally just for fun, and the majority of Americans live in states where either the recreational or medical use of cannabis is permitted.
But marijuana remains completely banned under federal law, which means that employers are still able to fire (or not hire) people based on their use of the drug.
“Most people don’t understand and find it incomprehensible that they can be terminated for engaging in lawful activity in their state, and unfortunately, they can,” says Marc Ross, who teaches “The Business and Law of Marijuana” at the Hofstra School of Law in Hempstead, N.Y.
Most employees in the United States are employed “at will,” a legal term that means they can be fired for any reason except those protected under federal law, like race or gender. Contracted employees can be fired for violating the terms of their contracts, which may include a provision that they not use illegal drugs. All in all, there are few protections for employees who use marijuana.
Consider the case of Seantrel Henderson. The offensive lineman for the Buffalo Bills is serving his second suspension of the season after testing positive for cannabis, which he uses to control his Crohn’s disease. This year, Henderson has had two surgeries for Crohn’s: one to remove two-and-a-half feet of his colon, another to reattach his intestines. But he is breaking the NFL’s collective bargaining agreement by using cannabis.
“For the NFL, it’s a very clear-cut case,” says Brian Fettner, Henderson’s agent. “Whether it is fair or not is another topic.”
Because the federal government classifies marijuana as a Schedule I drug—one that has no medical benefit at all—the league does not make exceptions to the drug policy for medical cannabis. This leaves players like Henderson choosing between their careers and their preferred form of pain relief.
“It will end his career if this keeps happening,” Fettner says.
Some states have written employee protection into their marijuana legislation. In Pennsylvania, for example, employers cannot refuse to hire someone because they hold a medical marijuana card, according to Joshua Horn, co-chair of the cannabis law practice at Fox Rothschild LLP, a national law firm.
Other states, including Illinois and Colorado, forbid employers from terminating an employee based on their use of lawful products off premises during non-working hours. The question then becomes whether marijuana is legal.
“What is cannabis if it’s lawful on the state but not the federal level?” asks William Bogot, the other co-chair of the cannabis law practice at Fox Rothschild.
Employers are left trying to balance state and federal law with the needs of their employees.
“There is no other law that has this dichotomy,” Horn says.
The differences are unlikely to be resolved by a legal case. When an employer is headquartered in one state but dealing with employees in another, legal cases go to federal court, where the law is clear: Marijuana is illegal. Appealing to the Americans with Disabilities Act, which in theory could protect people using medical marijuana from being terminated, also invokes federal law and its complete ban on cannabis.
The 10th Amendment of the U.S. Constitution, which protects the power of the states to make their own laws, could protect state legalization measures, but so far judges have rejected that argument.
If there is going to be any change to marijuana policies in the workplace, it must come from the federal government rescheduling cannabis from Schedule I to Schedule II, a classification for substances that are tightly controlled but have some medical use.
While public attitudes surrounding marijuana have changed quickly, it could take years for the law to catch up, especially with the incoming Trump administration unlikely to change federal policy. Because of this, many experts believe that employers will change their policies to reflect more widespread use of marijuana before federal law evolves. Bogot and Horn encourage their clients to develop policies that specifically address cannabis, crafting measures similar to current alcohol policies.
Others believe that as marijuana use becomes more widely accepted it will make good business sense for employers to stop testing and punishing employees that are otherwise doing their job.
Ross points to the Coats case, where Dish lost a highly regarded employee.
“As popular opinion supports marijuana use, especially with medical purpose, I would anticipate that employers would over time not terminate somebody for that use,” he says.
In the mean time, there is a small silver lining: Courts have so far ruled that people terminated over their marijuana use have the right to collect unemployment.