However, the Colorado Supreme Court ruled against him. The court held that, even though medical marijuana was legal under state law, it was still illegal under federal law and therefore not protected as a "lawful" activity.
Courts in California, Oregon, and Washington have also ruled against employees in these situations. To learn about the rules in your state, see our chart on state laws on off-duty medical marijuana use. As of November , more than half the states—including Oregon, Washington, California, Nevada, Maine, Massachusetts, and Alaska—have passed laws legalizing or decriminalizing marijuana for recreational use.
However, these laws generally do not protect employees from being fired due to their off-duty marijuana use. In fact, many of these laws expressly state that they do not affect an employer's right to continue to enforce zero tolerance workplace drug policies. To learn more, see our chart on state laws on off-duty recreational marijuana use. The rules above assume that the employee tested positive for marijuana on a legally administered drug test.
If the drug test itself violated the law, the employee cannot be fired based on the results. While federal law does not place restrictions on drug testing, the laws of many states do. Federal law does protect employees who take prescription drugs for a disability; for more information see Can I be fired if I test positive for a drug that was prescribed by my doctor? Many states have laws addressing when and how employers can conduct drug tests.
In general, employers have much more leeway to test applicants than current employees. Employers are typically free to routinely drug test applicants after making a conditional offer of employment. However, in some states, employers are not allowed to conduct routine or random drug testing of employees who are already working for the company. Instead, the employer needs a reason to test a specific employee, such as:. Even if the employer has the legal right to test, many states impose procedural requirements that the employer must follow.
Many states, for example, require that the employer:. To learn more about the rules on drug testing in your state, see our Testing at Work page and select your state under "Employee Drug Test Laws.
The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Some employees may be reluctant or unable to recognize or disclose that they have disability-related accommodation needs. Employers have a duty to inquire where an employee is clearly unwell and is known to have, or perceived to have, disability needs related to cannabis use for a medical purpose or cannabis addiction.
However, an organization might not be expected to accommodate a disability-related need if the person does not participate in the accommodation process. It depends. An employee drug-testing program might be justified for safety-sensitive positions in some circumstances.
Drug tests typically screen for cannabis. Drug testing has particular human rights implications and must be designed in a way that makes sure testing does not discriminate against people who use cannabis for a medical purpose related to a disability, or who have, or are perceived to have, a cannabis-related addiction disability. Employers can drug test for cause, for post-incident or post-reinstatement situations. Random testing might be permissible under the Code if employees are in safety-sensitive positions, staff supervision is minimal or non-existent, and there is evidence of risk in the particular workplace such as a general problem with substance abuse.
The technique used to test for drugs must be highly accurate, able to measure impairment at the time of the test, minimally intrusive and provide rapid results.
It is more difficult to measure impairment through drug testing. To date, the scientific research has not confirmed that a method of drug testing exists that is analogous to the alcohol breathalyzer in meeting this criteria.
Employers have a duty to accommodate the needs of people with disabilities who test positive for drugs, to the point of undue hardship. Employers should offer assistance and accommodation before imposing consequences when an employee is unable to do the essential duties of their job, they come to work impaired, or they fail a drug test, due to cannabis use for a medical purpose related to a disability, or due to cannabis addiction.
Workplace policies that automatically discipline people for not coming forward and disclosing cannabis use for a medical purpose or cannabis addiction may be discriminatory.
Employers should routinely inform employees who work in safety-sensitive positions about the need to disclose if they are using a drug that could lead to on-the-job impairment and to ask for disability-related accommodation before harmful incidents happen. Employees who use cannabis for a medical purpose, or have a cannabis addiction, should discuss with a doctor any concerns about fitness for work and negative effects on workplace health and safety or performance of essential duties.
Generally yes. People can smoke, vape or consume edible cannabis in their residential units and balcony or terrace either for medical or recreational purposes, except where laws or rules prohibit smoking or vaping cannabis and tobacco for public health reasons.
Ontario prohibits smoking or vaping cannabis for either purpose in common areas of apartment and condo buildings. Residents can consume edible cannabis for a medical purpose related to a disability anywhere on the premises of their residential building.
Smoke or vapour from recreational or medical cannabis might negatively affect other building residents, including people with chemical sensitivities and other disabilities. Housing providers have a legal duty to look for solutions and accommodate the disability-related needs of people who use cannabis for a medical purpose related to a disability, as well as of other people with disabilities who are affected by cannabis smoke or vapour, unless it would cause undue hardship.
All parties have an obligation to cooperate in the process of finding solutions. There are no laws against banning cannabis smoking or vaping in units, balconies or terraces. However, a housing provider would still have a duty to accommodate a person who smokes or vapes cannabis for a medical purpose related to a disability, unless it would cause undue hardship.
A rule that permits residents to smoke or vape tobacco in their units and balconies but prohibits cannabis use for a medical purpose related to a disability might violate the Code. People living in these types of residential institutions cannot smoke or vape medical or recreational cannabis in their units.
Ontario allows, but does not require, a separate common room for smoking or vaping cannabis or tobacco in these types of residential institutions. Residents in these types of institutions can consume edible cannabis for a medical or recreational purpose anywhere on the premises. Under Massachusetts state law, different statutes authorize medical and recreational sale and use of cannabis. S tate- licensed dispensaries sel l cannabis in cities and towns across Massachusetts for medical purposes and increasingly for non-medical purposes as well.
Depending on the situation, employees who use cannabis may or may not have legal protections. This general overview will focus on three areas: drug testing, the use of medical cannabis under state law , and recreational marijuana. Massachusetts e mployers may require employees to take drug tests under some circumstances, but the employers must meet specific legal criteria.
After an employee has been hired , a ny drug test must be job-related and consistent with business necessity. Because marijuana is illegal for federal purposes but legal under state law, it is unclear whether Massachusetts employers may test for marijuana even if they can test for other drugs ; however , if there is a specific federal requirement to test for marijuana , such as for tru ck drivers , the federal law would govern.
In Webster v. Motorola , the Supreme Judicial Court held that an employer was permitted to randomly test a salesperson because he had to drive a company vehicle for work , and the employer had an interest in ensuring that the employee was not driving while impaired by drugs or alcohol.
However, the same random testing program was not legitimately applied to a technical writer whose work did not implicate the same safety issues.
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