A little more than a decade ago, marijuana use was illegal in every state. Marijuana use is now fully legal in 18 states and the District of Columbia, and an additional 18 states allow use for medical reasons. Going along with this rapid trend toward legalization, states have enacted various workplace protections for marijuana users, including prohibitions on adverse employment actions for off-duty marijuana use. Taken together, these changes in state law create potential difficulties for employers over enforcement of workplace drug policies—particularly when those policies are required by federal law. At the federal level, marijuana remains illegal, is still covered by the Drug-Free Workplace Act, and is still prohibited under Department of Transportation testing requirements.
State Law Considerations
Employers face an increasingly complex task of navigating rapidly evolving laws governing marijuana use, which vary widely from state to state. As the national marijuana landscape continues to trend toward full legalization, states have enacted two primary means of protecting workers who use marijuana.
1. Off-Duty Marijuana Use
The first type of employment protections for marijuana users that employers should be aware of are state laws prohibiting employers from taking action against a worker for that worker’s off-the-job marijuana use—including recreational use. For example, New York’s Marihuana Regulation and Taxation Act prohibits employee discipline for the employee’s possession or use of marijuana outside of work hours, off the employer’s premises, and without the use of the employer’s equipment or property. And in New Jersey, employers may not take any adverse action against an employee because of the employee’s use of marijuana outside of the workplace and may not consider a broad range of marijuana-related prior offenses in making employment decisions. More recently, the Washington DC Council approved a bill with broad protections for marijuana users in the city. If signed by Mayor Bowser, it will prohibit employers from adversely affecting the employment of any person who uses marijuana—even if they test positive for the drug. California is also poised to join the growing list of states protecting employees’ right to use marijuana recreationally while off-duty. Legislators there passed a bill in August 2022 that would ban employers from firing workers who fail drug tests that look for metabolites—a substance the body produces when it breaks down THC, the main psychoactive compound in marijuana.
2. Medical Marijuana Use
The second form of protection is state laws that protect an employee’s use of marijuana for medical reasons and, under some circumstances, grant an employee’s request for a reasonable accommodation. For example, in Massachusetts, employees are expressly entitled to a reasonable accommodation when they use marijuana to treat a disability. In Barbuto v. Advantage Sales, the Massachusetts Supreme Judicial Court held that under state disability discrimination law the employer should have accommodated an employee’s off-duty medical marijuana use by making an exception to its drug-free workplace policy. The employee’s Crohn’s disease was a disability, and her off-duty use of prescribed marijuana was found to be a facially reasonable accommodation for her condition. In addition to Massachusetts, Nevada and Vermont also require employers to engage in an interactive process and attempt to accommodate the reasonable needs of medical marijuana users. This is an evolving area of the law, and employers should proceed cautiously when considering discipline of an employee for medical use of marijuana in any jurisdiction with a state or local law prohibiting discrimination based upon disability.
Interplay Between Federal and State Law
Even as states move toward legalization and employment protection, there are still specific areas of federal law that enable employers to penalize marijuana use more broadly. Federal agencies governing employers that perform public safety and national security functions generally require drug-free workplace policies and federally mandated drug testing. Employers in safety-sensitive transportation industries, such as trucking, railroads, and aviation, must comply with vigorous drug-testing requirements by the Department of Transportation, including prohibitions on the use of marijuana. In addition, the Drug-Free Workplace Act of 1988 (DFWA) requires federal grantees and contractors to implement a drug-free workplace policy and establish a drug-free awareness program as a precondition for receiving a federal grant or a contract. Notably, DFWA does not require covered employers to test employees for drugs or terminate them for drug-related violations. When implementing workplace policies concerning the possession and use of marijuana, employers must consider how state marijuana laws interact with such policies and with other federal laws.
Drug Testing Procedures
Despite the complicated legal status of marijuana, employers do not have to tolerate on-the-job use or intoxication. Traditional testing, however, may be problematic in states where recreational or medical use has been legalized, because marijuana stays in a person’s body for a long time after use. Thus, an employee in Colorado could use marijuana at home, come to work the next day, get tested randomly, and test positive, despite never being impaired at work. To remedy this potential complication, employers can focus on detecting marijuana intoxication based on behavioral issues and the inability to perform tasks, as opposed to traditional testing.
Employers should continue to monitor developments and exercise a high level of caution before taking action against an employee solely for off-duty use of marijuana, especially if such use relates to a medical condition.