Marijuana & the Workplace: Compliance Is Your Best Defense

The legalization of marijuana for medicinal or recreational use in nearly 40 states has created confusion and concern among some employers about their rights to maintain a marijuana-free workplace. For example, in a 2021 survey of employers conducted by the Current Consulting Group (CCG), 35 percent indicated that they were concerned about lawsuits and legal liability if they continued testing for marijuana and 24 percent said testing for marijuana made it hard to hire new employees. Additionally, one-in-ten employers indicated that testing for marijuana in their state was not even permitted.

The truth is, testing for marijuana is legal in all 50 states and while anyone can file a lawsuit for any reason, even baseless, frivolous reasons that have no chance of prevailing in court, the only cause for concern is if an employer fails to comply with the applicable marijuana laws. Complete compliance with the legal requirements of these laws gives employers an almost bullet-proof legal defensibility. 

For the past decade-plus, states have been legalizing marijuana use at a rapid pace. More recently, some states have inserted language into their legal marijuana laws that place conditions on employers who use drug test results to make employment-related decisions.  For this reason, employers must study the state marijuana laws that apply to them and make sure their drug testing policy reflects any workplace conditions related to testing for marijuana and taking adverse employment action based on a positive test result for marijuana. 

Legal marijuana laws can be tricky. In reviewing these laws, employers should look for keywords and phrases that tend to show up frequently, including:

Though one might assume that all of these marijuana laws are based on a common template, that would be an incorrect assumption. The above words and phrases appear in various forms from state to state, and they sometimes are used in different ways to convey different meanings. As such, a thorough review of each applicable law is advised.  

Following are four common categories workplace-related conditions that appear in most marijuana laws.

States that Specifically Prohibit Discrimination Against Marijuana Users

Though the statutory language in each of these states may differ, the intent is the same, to require employers to treat marijuana users the same as non-marijuana users. The following states are just some examples, among others, that include this stipulation:

• Arizona
• Arkansas
• Connecticut
• Delaware
• Illinois
• Maine
• Minnesota
• New York
• Pennsylvania
• West Virginia

States that Use the Term “Solely Based Upon” to Limit Adverse Employment Action

Following are examples of states that prohibit employers from taking adverse employment action relying solely upon 1) a positive drug testing result for marijuana, 2) knowledge that someone is a marijuana user, or 3) knowledge that an applicant or employee is a registered or qualified medical marijuana patient/user/caregiver.  Some states’ laws do not actually use the words “solely based upon,” but the intent of their law is the same. Here is a partial list of such states:

• Connecticut
• Delaware
• Illinois
• Maine
• Minnesota
• New Jersey
• New Mexico
• New York
• Oklahoma
• Pennsylvania
• Rhode Island
• South Dakota
• Utah
• West Virginia

States that Require Employers to Prove a Person Was “Impaired” at the Time of a Positive Drug Test

Following is not technically an all-inclusive list because some state laws do not use the word impair or impaired (in fact, some states use the term “under the influence” instead of impaired), but again their intent is the same, to prevent employers from using a drug test result as the sole basis for taking adverse employment action. The problem with this approach is that a drug test cannot scientifically or legally prove a person is impaired, so there must be some other articulable factors that can be combined with a positive drug test result to justify whatever action an employer wishes to take. (It should be noted that some state marijuana laws define what impairment means and allow employers to take adverse employment action when workers display those signs with or without a positive drug test result.)

• Arizona
• New Jersey
• South Dakota
• Utah

States that Emphasize a Person’s Status as a “Registered” or “Qualifying” Medical Marijuana User

The intent of this provision is to protect lawful medical marijuana users from discrimination in the workplace. Though most of the following states refer to “registered” or “qualifying” patients, users, or caregivers, in reality every state that has legalized medical marijuana could appear on this list: 

• Arizona
• Arkansas
• Connecticut
• Delaware
• Illinois
• Minnesota
• New Jersey
• South Dakota

Other Issues

Again, it is important to understand that each state with a legal marijuana law is somewhat unique in how its law is written. No two legal marijuana laws are exactly the same. 

Also, a state’s medical marijuana law may include workplace-specific language while the same state’s recreational marijuana law is silent on the issue. Or vice-versa. For several years, New Jersey’s medical marijuana law was the only guidance employers had for how to deal with marijuana use by employees. In November 2020, voters in the Garden State approved the legalization of marijuana for recreational use, but that initiative said virtually nothing about the workplace. In early 2021, however, the state legislature passed bills that included very specific workplace language, including making New Jersey the first state to require the use of a specially trained “impairment recognition expert” to determine if an employee is, in fact, impaired.

In addition to state marijuana laws, three municipalities—New York City, Philadelphia, and Atlanta—and the District of Columbia have passed ordinances that limit or prohibit pre-employment testing for marijuana. Atlanta’s law only applies to applicants for jobs with the city. The District’s law limits pre-employment testing to post-offer circumstances.

Conclusion

Many states that have legalized marijuana have taken a balanced approach as it relates to the workplace. For instance, some state laws specifically protect employers’ rights by allowing them to prohibit employees from being at work while under the influence of marijuana or bringing marijuana into the workplace. Most states also specifically state nothing in their law is intended to cause an employer to fall out of compliance with a federal contract or federal drug testing regulations. 

And every state with a legal marijuana law still permits employers to drug test for marijuana. Even in New York City and Philadelphia, many safety-sensitive occupations are exempt from their ban on pre-employment testing for marijuana.

Legal marijuana may be here to stay, but so is an employer’s right to maintain a drug-free workplace program that includes drug testing and that has as its ultimate purpose the safety and wellbeing of employees and customers. When it comes to legal marijuana laws, understanding and complying with any workplace-related provisions is an employer’s best legal defense.

Take advantage of the comprehensive Marijuana in the Workplace pages on the National Drug Screening, Inc website.

Thanks to Bill Current and Current Consulting Group for sharing this article.