A client in North Carolina recently asked me whether it was lawful to fire an employee for smoking marijuana. “Of course,” I replied. She then added another fact: the employee had been on vacation in Colorado and returned to work bragging to everyone how he had smoked marijuana while on vacation “because it’s legal there.” The client seemed surprised when I told her that she could still lawfully fire the worker. (I didn't stray into the issue of whether she should; I simply said that she could.)
Ever since Colorado legalized the recreational use of marijuana back in 2012, employers in that state and elsewhere have asked whether they have the right to terminate employees who use the drug, especially those who do so on their own time (i.e., outside of work hours and away from the employer’s premises). The short answer is “yes,” and even in states, such as Colorado, that have legalized or decriminalized it.
The Colorado Supreme Court recently addressed that question in a case involving a quadriplegic who was licensed to use marijuana to help alleviate pain. He smoked it only at home and in full compliance with his medical marijuana license and the state law allowing recreational use. Colorado also has a statute that makes it unlawful to fire a worker because they engage in lawful activities outside of work. When the employee failed a random drug test, however, he was fired. The court ruled in favor of the employer because although marijuana use is now lawful under Colorado law, it is still a crime under federal law. Thus, regardless of the permissive state law, the employee was not engaged in a lawful activity when he smoked marijuana at home.
Other states, including North Carolina, have similar laws that protect employees from being fired for engaging in lawful activities or using lawful products on their own time away from the workplace. (No, North Carolina does not have a state law allowing marijuana use.) However, as the recent Colorado case shows, workers who choose to smoke marijuana cannot hide behind those “lifestyle protection” statutes. Unless Congress changes federal law – not going to happen anytime soon – or the state statutes are amended to protect conduct that is lawful specifically under state law – not going to happen in most states anytime soon, either – employees who choose to get high do so at their own peril.
As long as marijuana use remains prohibited by federal law, employers in North Carolina and elsewhere have the right to fire workers for the actual or suspected use of marijuana, whether on the job or at home. In fact, even if an employee goes to Colorado, Alaska, or some other state that has voted to legalize marijuana and gets high while on vacation, there's still a very good chance they can be discharged back in their home state because marijuana use is still a federal crime throughout the land.