Employers nationwide have faced rapid changes in state and local laws governing marijuana usage. The U.S. has seen over two-thirds of its states legalize marijuana for medical purposes. Among these states, over 20 have also legalized recreational use for adults 21 or older. However, cannabis remains a Schedule I drug by the Controlled Substances Act on the federal level.
Despite the federal government’s stance, a growing trend has emerged in state and local legislation to improve life for marijuana users. For example, many have passed laws to create employment protections for them. As such, employers must ensure that their policies comply with these laws as they emerge. The following is a look at what employers should know.
Some states that allow marijuana use passed possession laws that can protect these employees. For example, most prevent employers from discriminating for lawful conduct while off duty. Though these laws may not explicitly protect marijuana usage, employers should act cautiously when addressing marijuana concerns.
Furthermore, states and localities have passed legislation that protects employee marijuana use that occurs off an employer’s premises and outside of work hours. Examples of these states include California, Connecticut, Illinois, Maine, Montana, New Jersey, New York, Washington, and Washington, D.C.
These laws prohibit employers from taking adverse employment-related actions for marijuana usage outside the workplace and while off-duty. Violating these laws can leave employers liable for civil penalties and lawsuits. Before these changes, employers could restrict off-duty cannabis usage by employees.
This practice remains true in most states, allowing employers to require applicants and employees to undergo drug testing. As such, they may continue taking adverse action when tests return positive for metabolites associated with cannabis.
Though the laws do not align perfectly, they do share one standard detail: Employees cannot neither work nor appear in the workplace while under the influence. In addition, the laws address how employers may determine whether someone has violated this requirement.
For example, each law has outlined its definition of “impairment.” Several regulations require employers to prove noticeable symptoms of impairment. They must also cite how these symptoms impact the employee’s performance. Short of that, they must show how it interferes with the employer’s ability to provide a safe and healthy workplace. States with this requirement include Washington, D.C., and New York.
Several states limit employers’ ability to test for marijuana use or take adverse employment-related actions. Though these laws vary widely between jurisdictions, one standard shared between the regulations concerns safety-sensitive positions. Employees and applicants should expect drug testing for safety-sensitive jobs like working with heavy machinery, administering medical care, or in public safety agencies. Furthermore, each law provides different carve-outs for positions required to undergo testing under federal requirements.
Laws protecting workers who use recreational marijuana have become more common. As such, employers should carefully consider job applicants or workers who use marijuana to ensure they do not discriminate. Employers should consider working with a trustworthy background screening provider to help ensure that their policies and hiring process comply with applicable laws.
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