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Delaware - Considerations for Marijuana in the Workplace

  • Last Update on May 5, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

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Employer Concerns – Significant to Review

  • Recreational marijuana became legal April 23, 2023.  Employers can enforce drug free workplace policies and still allowed to have a zero-tolerance policy.
  • Possessing or engaging in the medical use of marijuana is prohibited when (Delaware Code 16-49A-4901A (4)) “Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana.”
  • Unless in conflict with federal funding or contracts, an employer may not discriminate against an applicant or employee for being a registered medical marijuana patient or for a registered patient having a positive marijuana drug test.
  • An employer may discipline a qualifying medical marijuana patient for use at work or for working under the influence of marijuana.
  • Testing positive alone does not constitute grounds for not hiring, termination or discipline unless the patient used, possessed or was impaired by marijuana on premises or during hours of employment.

Testing

  • For a qualified medical marijuana patient, a positive test for marijuana will not constitute being “under the influence.”

Hiring/Termination

  • Testing positive alone does not constitute grounds for not hiring, termination or discipline unless the patient used, possessed or was impaired by marijuana on premises or during hours of employment.

Discipline

  • Testing positive alone does not constitute grounds for not hiring, termination or discipline unless the patient used, possessed or was impaired by marijuana on premises or during hours of employment.

Use/Possession

  • Smoking is permitted except for in any public place or form of transportation.
  • Physicians can elect to recommend a CBD-Rich card to be issued for a patient but only for the treatment of anxiety. These patients are limited to purchasing products containing low concentrations of THC.
  • Additionally, physicians can certify a patient for a Compassionate Use Card if s/he did not qualify for medical marijuana treatment. This authorizes the use of medical marijuana under specific conditions.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • An injury is non-compensable for workers’ compensation benefits if the injury is a result of the employee’s own intoxication, but the burden of proof shall be on the employer.

Sources

(e.g., Bill Number, Authority)
  • Delaware SB 170 – CBD rich/medical marijuana card
  • Delaware Code 16-49A-4901A – Medical marijuana
  • Delaware Code 16-47-4770 – Drug test cheating
  • Delaware Code 19-23-2353 – Workers’ compensation related
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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