The vast majority of states recognize the potential medical benefits of marijuana in treating debilitating medical conditions. To date, thirty-six states have legalized consumption of medical marijuana and eleven have done the same for low-tetrahydrocannabinol variations of the cannabis plant. Marijuana still remains illegal under federal law, however, subjecting it to stringent regulation since the Controlled Substances Act became law in 1971. Despite this, the wave of state legalization has essentially left the federal government in the past when it comes to marijuana policy. This federal prohibition poses unique problems for medical marijuana patients seeking employment. The current status of the law leaves no federal employment protections for patients who use marijuana to treat a medical condition, even if such usage complies with applicable state law. Further, even states that have legalized medical marijuana offer little in the way of employment protections for patients. Additionally, state disability protection statutes often exclude people engaging in “illegal use of drugs”—which courts have typically interpreted to include federally illegal substances, including marijuana. The majority of courts have also declined to protect medical marijuana use under lawful activities provisions. Some states have enacted provisions protecting medical marijuana patients from employment discrimination on the basis of their marijuana use, but these are just a small minority. This Note argues that the most expedient way to bring medical marijuana patients under the umbrella of employment protections is for courts to recognize protections for medical marijuana use under the tort of wrongful discharge in violation of public policy.
Robert M. Lydon, High Anxiety: Forcing Medical Marijuana Patients to Choose Between Employment and Treatment, 63 B.C. L. Rev. 623 (2022), https://lawdigitalcommons.bc.edu/bclr/vol63/iss2/5