As medical and recreational marijuana laws evolve, and with federal law currently in opposition to many state laws, employers face challenges when developing workplace drug policies and understanding their limitations in the area of drug testing. Use the enclosed best practice recommendations and chart for guidance.
Best Practices and Tips for Employers
State laws regarding cannabis (marijuana) change rapidly compared to other employment laws. Consequently, recent changes may not be reflected here. This chart is general HR guidance; employers with additional questions should contact an attorney for a legal opinion as well as their insurance carriers. Cannabis laws vary from state to state. Multi-state employers should review the laws of all states where they have employees. Cannabis anti-discrimination statutes may contain a protection for an applicant’s or employee’s status as a medical cannabis cardholder in addition to their status as a patient. Because status as a caregiver does not seem to be a common issue, for purposes of brevity, the chart only references status as a cardholder.
Employers should be aware that other laws (besides the state cannabis law) may implicate employers’ ability to regulate employee cannabis use, including but not limited to:
- Federal laws (e.g., Department of Transportation regulations, the Drug Free Workplace Act);
- State disability discrimination law;
- Lawful off-duty conduct law;
- Religious accommodations; and
- Wrongful termination in violation of public policy.
Currently, employers may have a drug policy prohibiting employees from using or working under the influence of cannabis. However, employers should review potential obligations under both the applicable cannabis law and the laws listed above when they apply their policy. If an employee requests an accommodation to use cannabis during work or to work while under the influence of cannabis, employers should consult with an attorney.
From an HR perspective, the risk-tolerant approach is usually to terminate an employee who tests positive for cannabis and deal with a potential lawsuit. In contrast, the risk-averse approach is usually to accommodate off-duty cannabis use (absent undue hardship or direct threat).
Employers should note that municipal cannabis laws, eligibility for unemployment insurance, and covered expenses under workers’ compensation laws are outside the scope of this chart.
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