Patients who use prescription medicines often have recourse under the Americans with Disabilities Act (ADA) if they are discriminated against for using their medicine. However, courts have found that ADA protections do not apply to medical cannabis since it is federally illegal. Many of the more recent medical cannabis statutes include language intended to prevent discrimination against medical cannabis patients in employment laws.
In 24 of the 38 medical marijuana states, either the medical cannabis law includes protections, or courts or the state Attorney General has indicated there are some protections for employees and/or applicants. Those states are Arizona, Arkansas, California, Connecticut, Delaware, Illinois, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Utah, Virginia, and West Virginia. In two of them, protections only apply to state and/or local governmental workers — Louisiana and Utah.
The below chart reviews employment protections (or lack thereof) for state-legal medical cannabis patients. In some of the cases, protections apply to all adults, and are part of the adult-use cannabis law.
| State | Court Decisions | Statutory Language Providing Protections | Language Limiting Protections |
|---|---|---|---|
| Alabama (no known protections) | None known. | N/A | N/A |
| Alaska (no known protections) | None known. | N/A | N/A |
| Arizona (statutory protections) | None known. | “B. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: |
The law also does not allow anyone to undertake “any task under the influence of marijuana when doing so would constitute negligence or professional malpractice.”
— AZ Rev Stat § 36-280 (A)
It “does not apply to” “an employee in the building and construction trades” or “applicants or employees hired for positions that require a federal government background investigation or security clearance.”
CT law does not “restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours.”
a. The person’s status as a cardholder; or
b. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”
(1) The individual's use of cannabis;
(2) The individual's status as a medical cannabis program patient; or
(3) The presence of cannabinoid metabolites in the individual's bodily fluids in an employer-required or requested drug test without additional factors indicating impairment pursuant to subsection (b)(4) of this section.”
C. The provisions of this Section shall not apply to emergency medical services, law enforcement, public safety officials, any state employee of the horse racing commission, and firefighter services."
(1) the person's status as a patient enrolled in the registry program … ; or
(2) a patient's positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.
(a) The person's status as a qualifying patient or primary caregiver who has a valid identification card, including the person's legal use of a lawful marijuana product off the employer's premises during nonworking hours, unless the person was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment; or
(a) use of a lawful product, that:
(i) affects in any manner an individual's ability to perform job-related employment responsibilities or the safety of other employees; or
(ii) conflicts with a bona fide occupational qualification that is reasonably related to the individual's employment;
(b) an individual who, on a personal basis, has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products; or
“ (a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or
(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.
4. Prohibit a law enforcement agency from adopting policies and procedures that preclude an employee from engaging in the medical use of cannabis.
5. As used in this section, “law enforcement agency” means:
(a) The Office of the Attorney General, the office of a district attorney within this State or the Nevada Gaming Control Board and any attorney, investigator, special investigator or employee who is acting in his or her professional or occupational capacity for such an office or the Nevada Gaming Control Board; or
“(a)(1) .. However, an employer may require an employee to undergo a drug test upon reasonable suspicion of an employee's usage of a cannabis item while engaged in the performance of the employee's work responsibilities, or upon finding any observable signs of intoxication related to usage of a cannabis item, or following a work-related accident subject to investigation by the employer. A drug test may also be done randomly by the employer, or as part of a pre-employment screening, or regular screening of current employees to determine use during an employee's prescribed work hours.”
— See N.J. Stat. § 24:6I-52 for more.
2. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless: [see next column]”
“.the applicant or employee is not in possession of a valid medical marijuana license,
b.the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or
c.the position is one involving safety-sensitive job duties, as such term is defined in subsection K of this section.”
"A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical marijuana"
Sets a 10 ml/nanogram limit for THC of blood for certain hazardous activities and creates other limitations
The adult-use law provides that, unless an exception applies, an employer shall not fire or take disciplinary action against an employee solely for an employee's private, lawful use of cannabis outside the workplace and as long as the employee has not and is not working under the influence of cannabis.
(1) Any interaction with a person's employer;
(2) Drug testing by a person's employer; or
(3) Drug testing required by any state or local law, agency, or government official.”
(i) an employee's use of medical cannabis in accordance with this chapter or Section 58-37-3.7 in the same way the state or political subdivision treats employee use of any prescribed controlled substance; and
(ii) an employee's status as a medical cannabis cardholder or an employee's medical cannabis recommendation from a qualified medical provider or limited provider in the same way the state or political subdivision treats an employee's prescriptions for any prescribed controlled substance.
(b)"A state or political subdivision employee who has a valid medical cannabis card is not subject to retaliatory action, as that term is defined in Section 67-19a-101, for failing a drug test due to marijuana or tetrahydrocannabinol without evidence that the employee was impaired or otherwise adversely affected in the employee's job performance due to the use of medical cannabis.”
(i) where the application of Subsection (2)(a) or (b) would jeopardize federal funding, a federal security clearance, or any other federal background determination required for the employee's position;
(ii) if the employee's position is dependent on a license or peace officer certification that is subject to federal regulations, including 18 U.S.C. Sec. 922(g)(3); or
(iii) if an employee described in Subsections 34A-2-102(1)(h)(ii) through (vi) uses medical cannabis during the 12 hours immediately preceding the employee's shift or during the employee's shift.”
In 2019, the Court of Common Pleas of Lackawanna County ruled the state’s medical cannabis law includes an implicit right of action for wrongful termination and allowed a patient’s lawsuit to proceed. (Pamela Palmiter v. Commonwealth Health Systems Inc., et al.)