Light, Smoke, and Fire: How State Law can Provide Medical Marijuana Users Protection from Workplace Discrimination

Currently, twenty-three states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, marijuana use—both recreational and medicinal—remains illegal under the federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to enjoy their new medical marijuana privileges. To date, courts have refused to grant protections to employees who have suffered adverse employment action for their off-duty, state-sanctioned medical marijuana use. Although the existing case law has unanimously favored employers, the existence of strongly written dissenting opinions that favor employees as well as the adoption by several states of statutory discrimination protections for medical marijuana users signifies that this existing precedent could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and that state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state-sanctioned therapeutic remedy.