Dazed Smokers, Confused Employment: Why State Employment Laws for Legal Marijuana Users Fail to Protect Employees

The fight to legalize marijuana in the United States seemed to finally be a success after more than half of the states legalized marijuana for medicinal purposes or for both medicinal and recreational uses. Although marijuana is legal in many states, employees who legally use marijuana off the job and are not high during work hours can still be denied employment or terminated. These employees range from the casual marijuana user to the employee with disabilities who medically relies on marijuana. One problem with states’ legalization laws is that they are silent on the effect of legalization in the employment sector. Another problem is that the laws explicitly exclude employment and thus allow employers to decide whether to take adverse action against employees who legally use marijuana. Three employment-based arguments have challenged employers’ adverse actions, but all have failed in both state and federal court. This article will explore these three employment-based challenges and explain why they were not successful. This article will also address the laws of ten states that do explicitly provide some employment protection and explain the four problems as to why these state laws are insufficient protection for legal marijuana users.