With all the news about marijuana legalization lately, it can be difficult to understand how changing marijuana laws can affect you and your clients. When it comes to prohibiting marijuana use by employees, conflicts between state and federal laws, along with potential conflicts between different types of state employment laws, can create a legal minefield for employers.

Some employers, such as those that are subject to the federal Drug-free Workplace Act or federal commercial transportation regulations, must comply with drug testing requirements regardless of any state laws regarding marijuana use. For other employers, however, legal obligations for workplace marijuana-use policies are not quite as clear.

What Does the Federal Government Say?

All marijuana use and possession remains illegal under federal law. In 2013, the federal government established a “hands off” approach to enforcing federal marijuana laws in states that had passed laws permitting marijuana use. This approach was changed in 2017, however, so the current level of federal enforcement remains uncertain. 

Understanding State Marijuana Laws

Despite the possibility of federal enforcement, many states have enacted laws that allow marijuana use in certain circumstances.

• CBD-only laws allow very limited uses of a substance called cannabidiol (CBD), a low-THC derivative of marijuana. These laws do not allow for the use of marijuana plants for any purpose and generally allow CBD use only for the treatment of one or more specified medical conditions, such as epilepsy in children.
• Medical marijuana laws allow medical uses of the marijuana plant by individuals who obtain state authorization. Most medical marijuana laws require an individual to have a debilitating medical condition, and all states require individuals to either be 18 or older or have a parent’s authorization, in order to obtain medical marijuana.
• Recreational marijuana laws generally allow adults who are age 21 and older to use marijuana without meeting any other specific requirements. Most of these laws allow for marijuana sales and limited home cultivation of the plant. Some of them also regulate marijuana concentrates or edibles.

Virtually all marijuana laws include certain time and place restrictions on use. For example, most of them:

• Prohibit smoking marijuana in public, while operating a vehicle, and while near schools or correctional facilities; and
• Specify that employers, business owners and property owners may prohibit smoking and other uses of marijuana on their premises.

Top Issues for Employers

Almost all state marijuana laws explicitly state that employers can prohibit employees from:

• Using marijuana in the workplace; and
• Being under the influence of marijuana while working.

However, in some cases, employers may not be allowed to ban employees or applicants from using marijuana altogether.

Lack of Uniformity Among States

One reason for this is that when it comes to legal, off-duty marijuana use and employment, there is very little uniformity among state marijuana laws. Some laws do specify that employers may prohibit employees from all marijuana use, even if they are authorized to use it for medical purposes.

Other marijuana laws either provide some protections for employees, even if they don’t specifically prohibit employers from taking adverse employment actions based solely on a positive test for marijuana, or don’t address employment issues at all.

Employment Laws vs. State Laws

Another concern for employers is how other employment laws may interact with a state marijuana law. For example, most employers are subject to state laws that prohibit discrimination based on disability. Medical marijuana laws usually require an individual to have a debilitating medical condition in order to become an authorized user.

Because most debilitating conditions will qualify as a disability under state discrimination laws, some employers could be required to permit off-duty marijuana use as a reasonable accommodation for employees or applicants who are authorized medical marijuana users.

Also, some states have laws that prohibit employers from discriminating against individuals based on their use of lawful products or engagement in lawful activities outside of work. How this type of law will affect an employer will depend on how the term “lawful” is defined.

For example, in some states, a product or activity will not be considered lawful unless it is allowed under both state and federal law. Other state laws specifically define lawful products or activities as those that are legal under state law, regardless of any conflicting federal law.

Workers’ Comp & Unemployment Compensation

State workers’ compensation and unemployment compensation laws may also affect an employer’s policies regarding marijuana use, because some of these laws place limits on an employer’s ability to deny benefits based on a positive drug test.

Several states also have laws that require employers to take certain steps, such as establishing a written workplace drug testing policy, before conducting any tests on employees or applicants

Compliance Tips for Employers

Every employer should become familiar with its state’s marijuana laws to determine whether they:   

• Include protections for employees?
• Address off-duty use?
• Create or allow causes of action against employers?
• Require employers to take specific actions when a person tests positive for marijuana?
• Address how to determine impairment?
• Require an established workplace drug policy?

Employers should become familiar with other state laws that may affect their workplace drug policies. Even if no state law requires a written policy, it is a best practice for any employer that conducts drug testing to establish one. This policy should clearly outline the employer’s expectations and be distributed to employees before any testing occurs.

Employers that are not subject to mandatory testing requirements should also consider excluding marijuana tests for non-safety sensitive positions in order to avoid the legal issues we outlined in this post.

Want Help Staying on Top of Changing Marijuana Laws?

Whether you’re looking for compliance overviews, state-specific guidance or timely updates, Broker Briefcase can help. Our compliance content is created by a team of experienced attorneys and updated regularly to account for changing legislation.