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Quick Take: 4 Things Employers Should Know About Marijuana and the Workplace

By Cary Burke

Employers take heed: the landscape with respect to state marijuana laws is shifting, seemingly week to week. Currently, almost half of the states have legalized marijuana in some form or fashion, with four states and the District of Columbia legalizing the drug for recreational use.  

With laws respecting the use of marijuana for either or medical or recreational purposes constantly cropping up, employers should be aware of their respective rights and obligations. Below are four things employers should keep in mind about marijuana and the workplace.

  1. Drug-Free Workplace Policies Remain Valid
    Zero-tolerance policies in the workplace are explicitly allowed pursuant to the laws of the majority of states who have legalized marijuana either for recreational or medical use. Employers should thus ensure that they have implemented a drug-free workplace policy. In order to further protect themselves, employers should disseminate the policy to all employees and direct employees to sign a form acknowledging their receipt of same.
     
  2. Employers Can Terminate Employees Who Use Marijuana at Work
    Marijuana has been legalized for recreational use in Alaska, Colorado, Oregon, Washington, and the District of Columbia. However, marijuana is still classified as a Schedule 1 drug pursuant to the federal Controlled Substances Act, and is thus illegal under federal law. As a result, employers can legally terminate an employee who uses, sells, possesses, or transfers marijuana in the workplace in violation of a workplace policy. And employers who do business with the federal government may be required to terminate any employee who possesses, uses, or sells marijuana at work.  
     
  3. Carefully Consider the Marijuana Cardholder
    Even though marijuana remains illegal under federal law, almost half of the states have legalized medical marijuana in some form or fashion. Problematically for employers, the laws of at least three states (Arizona, Delaware, and Minnesota) provide that an employee cannot be terminated for testing positive for marijuana metabolites alone, so long as that employee is in possession of a valid medical marijuana card. Employers in those states should be able to demonstrate evidence of an employee’s impairment in the workplace prior to discharging them for testing positive for marijuana metabolites.

    Furthermore, at least nine states (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island) prohibit employers from discriminating against employees on the basis of their possession of a medical marijuana card. Accordingly, employers in those states cannot discipline or terminate an employee simply for being a marijuana cardholder.
     
  4. Marijuana Use in the Workplace Is Not a Disability Accommodation
    It is currently unclear how the Americans with Disabilities Act’s (ADA) reasonable accommodations requirements will interact with state marijuana laws. But keep in mind that if an employee informs their employer that he or she is a medical marijuana user, the employer likely has been put on notice that the employee is potentially disabled pursuant to the ADA. Even though the ADA does not require an accommodation based on an employee’s use of medical marijuana, it does afford certain protections to employees (and applicants) with disabilities, such as the confidentiality of medical information.