Under Texas law, employers are free to prohibit the use of illegal drugs, whether on the job or off duty. It depends on the state in which you live. About a dozen states with medical marijuana laws include protections for off-work use by employees with a valid prescription, as long as they don't report to work under the influence of marijuana. In these states, employers cannot fire medical marijuana users based solely on a positive drug test.
The employer would need some proof that you were under the influence of marijuana at work or during working hours. Yes, marijuana is still classified as a Schedule I substance under the Controlled Substances Act. This means that growing, distributing, using, manufacturing, and possessing marijuana remains illegal under federal law. Executive Order 12564, Federal Drug-Free Workplace, requires federal employees to refrain from using illegal drugs.
Therefore, any use or manipulation of marijuana is illegal for federal employees. Yes, no state law requires employers to tolerate on-the-job use. In contrast, there are other states with medical marijuana laws that allow employers to fire employees who use cannabis outside of work. This is mainly because federal law still considers marijuana to be a highly addictive and dangerous substance.
If an employer decides to discipline a qualifying medical marijuana patient because of disability during working hours or because of being affected on premises, the employer must give the employee a reasonable opportunity to challenge the grounds of the determination. Yes, an employer may choose to accommodate a consumer of medical marijuana, however, the employer chooses to do so, as long as the employer does not break any laws. Under Maine law, an employer cannot refuse to employ or penalize someone solely because of that person's status as a qualified medical marijuana patient, unless failure to do so violates federal law or causes the employer to lose the contract or federal funds. However, a Massachusetts court rules that employers cannot fire employees who use medical marijuana solely because of a positive drug test.
In addition, employers can discipline an employee for being under the influence of medical marijuana in the workplace or for working under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position. So far, 29 states and the District of Columbia have enacted laws allowing the use of medical marijuana. While the use of medical marijuana may be legalized in a state, recreational use may not be legal in that same state. The other half of the states with medical marijuana laws specifically allow employers to fire employees for off-duty use or don't clearly address the issue.
An employer may also prohibit a medical marijuana patient from performing any tasks that may result in a risk to public health or safety while under the influence of medical marijuana. However, some states have passed laws requiring employers to reasonably accommodate the use of medical marijuana. Under New Jersey law, an employer is not required to accommodate the medical use of marijuana in any workplace. There are several states, such as Arizona, Massachusetts, Illinois and Delaware, that have labor protections for medical marijuana users.
As a result, employees who use medical marijuana for a disability are not likely to be entitled to accommodations under the ADA. .
