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Can I Fire Someone for Getting High at Home?

Testing for marijuana use has been a staple of drug testing for years. Because marijuana is still listed as a Schedule I drug (no currently accepted medical use) by the federal government, many employers assume they can terminate any employee who tests positive for marijuana use.

But times are changing. As of today, 31 states plus the District of Columbia have legalized the use of marijuana in some manner — either for medical purposes or recreational use. Several states have expanded protections to marijuana users in the employment context. For example, Arizona, Connecticut, Delaware, Maine, Minnesota, New York, and Rhode Island prohibit taking an adverse action against an applicant or employee based on marijuana use, or participation in a medical marijuana program, so long as the employee is a qualified medical marijuana user. Nevada requires that employers reasonably accommodate the medical needs of an employee who uses medical marijuana. At the moment, these protections are limited to medical marijuana users, but, as the legalization of recreational use continues — it is currently legal in only nine states and the District of Columbia — employers should expect greater protections for recreational users to follow.

Regardless, broad exceptions remain. States and courts almost uniformly allow an employer to take an adverse action against an employee if the use occurred at work. And different rules often apply to “safety sensitive” positions — like positions that require the operation of machinery — allowing for more stringent drug-related employment qualifications.

If you regularly drug test employees and take into account for employment purposes whether those employees test positive for marijuana, keep a close eye on the laws in your state regarding how you are allowed to use that information.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.