December 8, 2022

Until a decade ago, every state had it illegal to use marijuana. However, many states have changed this view, which presents employers with new challenges. Recreational use of marijuana is now legal in 18 states and Washington, D.C., with another 18 allowing medical use. With this legalization has come an increasing number of workplace protections for users. It is crucial to understand these changes to avoid potential liabilities.

Protections for Off-the-Job Use

Following the trend of increasing legalization, several states have taken steps to prohibit employers from taking adverse employment-related actions against workers for the off-duty use of marijuana. This usage includes both medical and recreational usage.

Such states include New York, which prohibits disciplinary action against an employee for possessing or using marijuana outside of working hours, off of the employer’s premises, and does not involve using the employer’s property. Similarly, New Jersey prohibits adverse action against employees for off-duty use and the consideration of certain marijuana-related offenses in making employment decisions.

Notably, California recently joined the ranks of those with workplace protections for marijuana users after passing AB 2188 into law. This legislation amended the state’s Fair Employment and Housing Act. Furthermore, it prohibits discrimination against marijuana users in hiring, termination, and other employment-related decisions based on the usage of marijuana away from the workplace and outside of working hours. It also bars discrimination based on metabolite testing, which cannot determine whether a worker is currently under the influence.

Protections for Medical Marijuana

In many states, the law protects employees’ use of marijuana for medical purposes. However, in some states, employers must grant employees requests for reasonable accommodation.

Courts have upheld these laws in states such as Massachusetts. In Massachusetts, employers must grant reasonable accommodation when employees use marijuana to treat disabilities. The State’s Supreme Judicial Court has held that disability discrimination law requires employers to make an exception to drug-free workplace policies when off-duty marijuana use is a reasonable accommodation for a medical condition.

Similarly, states such as Nevada and Vermont have enacted requirements that employers must engage in the interactive process to accommodate medical marijuana users. However, these laws are still developing, and employers must tread carefully when choosing to discipline the medical use of marijuana.

Changes to Drug Testing

Employers are still permitted to enforce drug-free workplaces, meaning they can prohibit marijuana and intoxication on their premises and during working hours. However, traditional metabolite testing may not be acceptable in all cases.

They cannot use traditional metabolite testing because these tests can pop positive long after use. In states with legalized marijuana usage, employees’ use during off-work hours can continue to result in positive tests despite not being intoxicated.

Employers cannot use metabolite testing alone in certain states to take adverse action. Instead, employers should consider focusing on the effects of intoxication, such as an inability to perform tasks, to determine if employees are under the influence in the workplace.

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