What are my rights if I failed a drug test due to cannabis but cannabis is legal?

UPDATED: May 14, 2019

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What are my rights if I failed a drug test due to cannabis but cannabis is legal?

I’m a 20 year employee. My company was bought out and my new employer required drug

test which I failed.

Asked on May 14, 2019 under Employment Labor Law, Massachusetts


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If it is medical marijuana (you have a medical marijuana card or presciption), they cannot fire you for testing positive, but could fire you for being high or under the the influence at work, or bringing it to work. That is because they must make a "reasonable accommodation" to your medical needs (so can't fire you just for failing the test), but are not required to let any employee be intoxicated (by any substance, even legal ones, like alcohol) at work, or for bringing an intoxicating substance (and one which, in the case of marijuana is still illegal under federal law) to work.
If it's not medical marijiuana but recreational usage, then you can be fired (or anything short of firing, like suspension) for failing the drug test: even though recreational use is legal in MA, employers have wide discretion to terminate employees for a variety of legal actions (e.g. they could fire anyone who gets a tatoo; anyone who works a second job or drives for Uber or Lyft; anyone who watches "Game of Thrones"; etc.). Employers set the rules for work so long as those rules don't violate the law, and there is no law restricting the ability to discripline or terminate employees for recretional marijuana use.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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