Dear Pot Lawyer,
Can I still be fired for testing positive for cannabis even if I’ve never been high at work?
We wrote about this back in 2015, and there have been some developments on this front since then—but unfortunately, right now the answer is the same: Yes, you can still be terminated for testing positive for cannabis even if you never consume on workdays. Since Oregon is an at-will state, employers have broad authority to fire employees for any reason that doesn’t rise to unlawful discrimination under state or federal law, including for no reason at all (unless your contract says otherwise). Discriminating against cannabis consumers, even medical marijuana users, is perfectly acceptable.
This makes sense from the employer’s perspective. Let’s use alcohol as an example. Alcohol has been legal since the end of prohibition, but firing an employee for showing up drunk on a workday probably won’t raise any controversy. In the same way, few people would expect to deserve legal protection for showing up to work stoned. But you certainly wouldn’t expect to be fired for having a few drinks over the weekend, although technically this would be legal. The trouble is that, unlike alcohol, employers claim they can’t easily differentiate between the weekend toker and the workday user. Because cannabis remains detectable in the body for a while after use, there is no generally accepted technology available to test for impairment.
Many employers that either contract with or receive funds from the federal government are required to enforce strict zero-tolerance drug policies under the Drug-Free Workplace Act. With the current lack of testing technology, these employers have little choice but to terminate employees who test positive for cannabis at any time, and the law allows them to do just that.
A Democratic state senator, Floyd Prozanski, has been trying to change this. Earlier this year, Prozanski introduced Senate Bill 301, which would have prevented Oregon employers from prohibiting or penalizing employees for off-hours use of any legal substance, including cannabis. The bill faced strong opposition from employers focused primarily on the federal law issues discussed above and on the technical limitations of cannabis testing. Prozanski attempted to mollify the opposition by amending the bill to limit its protections to medical marijuana cardholders. The amended version made it out of the Oregon Senate Judiciary Committee, but was ultimately killed by Senate Democrats who decided it would never get the votes necessary to pass the full senate.
Until someone takes up the torch lit by Floyd Prozanski, you can still be fired for testing positive for cannabis, even long after you’ve last partaken, and even if you are a medical marijuana user.
Got a question? Email us at email@example.com. And remember that if you have a legal problem, contact a lawyer! Our educational musings cannot be relied upon as specific legal advice.