In a prior post, we highlighted the expectation that new recreational marijuana laws will not likely affect expectations that employees should be free of mood altering substances while at work. Essentially, employees could still face jeopardy if random drug tests found marijuana in their systems.

This reasoning could apply in pre-employment screenings and random drug tests required under a collective bargaining agreement. Given this backdrop, would employees be protected even if they have medical clearance from their physician to ingest marijuana to treat chronic conditions?

In 2015 the Colorado Supreme Court opined that medicinal marijuana clearance was not protected under federal law, and that state law did not extend the term “lawful activities” as defined by statute to protect activities that were otherwise unlawful under federal law. Under this reasoning, the firing of a disabled employee who relied on marijuana to treat involuntary muscle spasms was upheld.

This year, the Massachusetts Supreme Court upheld struck down a firing under similar circumstances. A woman who relied on marijuana to treat Chrome’s disease was terminated for failing a drug test. The court reasoned that the “use and possession of medically prescribed marijuana by a qualified patient is as lawful as the use and possession of any other prescribed medication.”

Indeed, the reasoning only applies to Massachusetts cases, but it is worth considering whether it will find its way into other cases where medicinal marijuana use is legally sanctioned. If you are facing sanctions due to a failed drug test, an experienced employment law attorney can assess your situation.