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Can medicinal marijuana protect an employee from being fired?

In a prior post, we explored the question of whether an employer has an obligation to allow a troubled employee to participate in an alcohol diversion program in lieu of terminating him or her violations of company policies. We explained that employers are not required to rehabilitate troubled employees or provide such opportunities.

In the same vein, employers may have questions about whether they may terminate employees who violate company policies prohibiting the use of marijuana, even for medicinal purposes. The question will become more of an issue if California approves the use of marijuana for recreational purposes, as Colorado and Washington have. 

From a medicinal standpoint, courts have found that Americans with Disabilities Act (ADA) does not protect employees who use marijuana for medicinal purposes from being fired. Essentially, an employer does not have to provide a reasonable accommodation for the use of the drug, and marijuana is still classified as a Schedule I drug under the federal Controlled Substances Act. The Ninth Circuit has held that employees who use medicinal marijuana cannot be classified as a “qualified individual with a disability.”

Further, the California Supreme Court has held that the Fair Employment and Housing Act does not put an employer on notice that it will have to accommodate the use of medicinal marijuana.

Nevertheless, employee terminations may be challenged in court based on unique circumstances. If you have questions about whether an employee’s termination may raise legal issues, a conversation with an experienced employment law attorney would be prudent.

The preceding is not legal advice. 

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