Fired for Medical Marijuana Use or a Failed Drug Test? Your Rights

What Federal Law Says

Marijuana is listed as a controlled substance under 21 U.S.C. 812. Under 42 U.S.C. 12114, a worker who is currently engaging in the illegal use of drugs is not protected by the ADA when an employer acts on that use. 29 C.F.R. 1630.3 repeats the exception. Because the federal listing covers marijuana even where a state allows it, courts have generally held that the ADA does not require an employer to excuse medical marijuana use.

Where State Law May Help

A number of states have added their own job protections. Some bar employers from firing or refusing to hire a registered medical patient for that status, some protect lawful off-duty use, and some give a patient a chance to explain a positive result. Others give no job protection at all. Safety-sensitive jobs and workers covered by federal drug testing rules are often treated differently, so the details of your state and your role matter.

Prescription Drugs Are Different

The illegal-drug exception does not reach medicine you take as prescribed. A worker whose test flags a lawfully prescribed medicine, such as a pain, anxiety or sleep prescription, may still be protected if the condition is a disability. An employer that asks about prescriptions or the condition behind them has to follow the ADA's limits, and a request for a change in duties can start the process in our guide to the interactive process.

Warning Signs in a Drug Test Case

• Uneven testing

  Only some workers were tested, or testing began right after a complaint or an injury report.

• Skipped steps

  The policy promised a second sample, a lab review or a chance to explain, and none of it happened.

• No impairment evidence

  A past-use result was treated as proof you were impaired at work, with no other sign of it.

• Different treatment

  Coworkers with a similar result kept their jobs.

• Timing

  The test followed a request for leave, an accommodation or a report of a safety problem.

Retaliation After You Object

If you reported unsafe conditions, asked for an accommodation or filed a claim and a drug test followed, 42 U.S.C. 12203 bars retaliation for using ADA rights. A positive result may be a real reason or a cover for punishment, so the order of events matters. Our guide to workplace retaliation explains what tends to show a link.

What to Do Right Away

• Get the policy

  Save the handbook page or email that sets out the testing rules, with the date.

• Keep the test paperwork

  Record the date, the reason given for the test and any form you signed.

• Save your card or prescription

  Keep the medical card, the prescription and any note you gave the employer.

• Write down who said what

  Note the managers involved, the exact words and any witnesses.

• List how others were treated

  Record coworkers who were tested or who had a similar result.

• Watch the deadline

  A disability charge with the EEOC generally must be filed within 180 days, or 300 days in many states. See our guide to <a href="/blogs/how-long-to-file-employment-discrimination-claim-deadlines" class="text-primary underline">filing deadlines</a>.

Our post on disability discrimination under the ADA covers the wider picture, and the documentation checklist lists what to keep.

Free Case Review

If you were fired, suspended or turned away after a drug test, a review of the policy, your state and the timeline can show whether a claim is worth pursuing. Our team can look at your situation at no cost, if you are eligible, and you do not need every record in hand to start.

Frequently Asked Questions