Employee Marijuana Use and the Workplace
May 13, 2024
The federal government still considers marijuana a federally banned substance, but thirty-eight states have legalized it for medical use and twenty-four have legalized it for recreational use. So, generally speaking, federal law prohibiting the possession, growing, or distribution of marijuana in states where it’s been legalized is no longer being enforced. The legal status of cannabis is therefore confusing, and the best way to navigate the changing legal and practical issues of marijuana use by U.S. employees on the job is at best uncertain for many organizations.
Employers face a number of questions about their ability to regulate the use of cannabis at work, and even the desirability of trying to do so. For example, can or should an employer prohibit use of the drug even if the employee was prescribed it by their doctor to ease chronic pain or the side effects of chemotherapy? Can such employees use the drug at work as needed? What about a drug-testing program that’s designed to reduce the risk of workplace accidents but might create some risk for the employer under state law? When state law and practical safety considerations conflict, does state law provide employees with remedies that may be problematic for the employer, or does it allow for a firmer employer position on safety enforcement? Should employers be barred from drug testing?
The answers will likely vary by state law and the nature of the employment. In general, employers are free to have and enforce their own policies, but organizations with drug testing or drug-free workplace policies should review their relevant state laws to make sure they don’t conflict. Remember, even if your state laws provide substantial employment protections, employers are obligated to maintain a safe workplace. Employers should consider whether state laws protecting employees from discipline may impede their ability to maintain a safe work environment. Most state laws give businesses the ability to maintain a drug-free workplace and prohibit the consumption of cannabis while at work.
Some state laws that protect employee rights in regard to drug testing that includes marijuana also recognize an employer’s obligation to ensure workplace safety. For example, laws in Washington state and Connecticut limit the use of positive drug-test results, but they don’t apply to employees with “safety-sensitive” jobs. New Mexico defines a safety-sensitive position as a position in which “performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”
Other state laws, such as New York’s, prohibit testing for marijuana without specific cause. In Illinois, employers can test employees and applicants for THC, but can’t disqualify them from employment based on positive test results alone. California and Washington law prohibits disqualification from employment for positive tests for “non-psychoactive cannabis metabolites.” There are similar restrictions in Arizona, Connecticut, Delaware, Iowa, Michigan, Montana, New Jersey, New Mexico, Oklahoma, Pennsylvania, Virginia and Washington, D.C. California prohibits employers from requiring tests for marijuana use for job applicants, or randomly for employees at work. Some positions in the building and construction trades or positions requiring federal background checks or security clearance may be exceptions. Some organizations without relevant safety concerns have simply removed marijuana from their urine test panels altogether.
The long and the short of it is that marijuana laws vary and are somewhat subjective. Employers do well to lay out clear policy and guidelines as to what they will and will not tolerate when it comes to marijuana use at work, and to make sure those guidelines don’t conflict with their state laws. Be especially careful if your organization has offices in multiple states with differing drug laws.
What about marijuana use during work hours for remote employees? Employers should provide written communication on organization policy to employees stating that during working hours, they are expected to comply with all policies of the company, including drug and alcohol policies, even when working remotely.