Medical marijuana is legal in more than 35 states and the District of Columbia. And more than 20 states—including Colorado, New York, Washington, Massachusetts, Oregon, Nevada, Maine, Alaska, and California—also allow recreational use. At the same time, many employers have zero-tolerance drug policies.
In terms of testing for impairment, marijuana is different from alcohol. It can be detected in the body for weeks after it has been used. An employee could use it on the weekend and still test positive at work the next week, even when he or she is no longer impaired.
This raises some interesting questions, particularly about whether employers can fire employees for using marijuana legally while off duty.
Was the Drug Testing Legal?
The first question to ask is whether the employer conducted the drug test legally. Except for federal government employers and employers receiving federal funding, federal law does not regulate drug testing by private employers. However, many states have laws addressing whether and how employers can conduct drug tests.
Many employers screen for the use of drugs, including marijuana, as part of the pre-employment process. State laws generally give employers the right to drug test applicants as a condition of employment. However, the rules for testing current employees is often more restrictive.
In some states, random drug testing of current employees is allowed. However, in other states, employers may only test employees in certain circumstances. For example, many states allow employers to test when:
- there is reason to believe an employee is under the influence of drugs at work
- the employee holds a position that could threaten the safety of the public or coworkers
- an employee is involved in an accident that causes physical harm or property damage
- as part of an a fitness-for-duty medical examination, or
- after an employee completes a drug rehabilitation program.
Many states also have rules about how the drug test is performed. For example, in many states—including Rhode Island and Florida—an employer must give the employee a copy of the drug test results and an opportunity to challenge a positive result (by explaining the results or by having the sample re-tested).
Are Marijuana Users Protected From Being Fired?
The right to use marijuana legally under state law does not necessarily guarantee job protection for exercising that right.
Unless your state’s marijuana law specifically prohibits your employer from firing you for off duty marijuana use, you probably won’t be protected. A number of states have passed laws granting employees such protection for recreational marijuana use, including:
- California
- Connecticut
- Illinois
- Montana
- Nevada
- New Jersey
- New York, and
- Rhode Island.
And nearly half the states have laws protecting users of medical marijuana from employment discrimination.
Medical Marijuana
Almost half the states with medical marijuana laws have passed laws that restrict employers from firing medical marijuana users unless they are shown to be impaired on the job. If you have a prescription for medical marijuana in these states, your employer cannot fire you for off duty use that does not affect your work.
However, several other states with medical marijuana laws either specifically allow employers to fire employees for off-duty use or do not address the issue.
Check your state's laws or ask for the advice of an employment lawyer if you've been fired or disciplined for using medical marijuana.
Recreational Marijuana
As of 2025, 24 states and the District of Columbia have legalized recreational marijuana, and it seems like more are doing so every year. However, these laws don't always protect employees from being fired for legal, off-duty recreational use. Only a few states (see above) have passed laws that protect recreational marijuana users from employment discrimination.
Many state laws expressly state that they are not intended to interfere with an employer’s ability to enforce zero-tolerance drug policies.
Can You Be Fired for Getting High at Work?
Your employer can generally fire you for using marijuana or other drugs in the workplace. The state laws that protect recreational and medical marijuana use generally apply only to off-duty use. (Learn about your rights when it comes to smoking and vaping at work.)
However, your employer must follow its own policies for responding to workplace drug use. These policies might, for example, require a referral to drug treatment prior to termination. In addition, if you're a member of a union you might have additional rights, such as the right to a hearing; contact your union representative to learn more.
The ADA and Medical Marijuana
The Americans with Disabilities Act is a federal law that requires employers to provide reasonable accommodations to qualified employees with a disability. However, the ADA does not require employers to accommodate illegal drug use.
While medical marijuana is legal in many states, it is still illegal under federal law. As a result, employees who use medical marijuana for a disability are likely not entitled to accommodation under the ADA.
Call an Employment Lawyer
The issues surrounding an employer’s right to fire a worker for legal use of marijuana are complicated. Plus, the laws in each state are unique. If you were fired after testing positive for marijuana on a drug test, you should consult with an employment lawyer.
A lawyer can tell you if your employer violated the law by firing you or by drug testing you in the first place.