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Legalized Marijuana and Employment: Off-duty Use and Drug Testing

While all marijuana use remains illegal under federal law, most states have enacted laws that allow certain uses of marijuana or a marijuana derivative. None of these laws place any restrictions on an employer’s right to administer drug tests or to prohibit their employees from using or being under the influence of marijuana at work or during work hours. 

 

However, it is not always clear whether an employer may take adverse employment actions against an employee based solely on a positive test for marijuana. As a result, several courts have issued decisions on this issue. These decisions will answer this question for employers in some legalized marijuana states and may be helpful for employers in others. 

This Compliance Overview provides a general summary of federal and state marijuana laws and the court decisions that provide guidance for employers in this area. 

Links and Resources 

National Conference of State Legislators’ website on state marijuana laws

Federal drug testing requirements for commercial motor vehicle operators and federal contractors 

STATE MARIJUANA LAWS DO NOT AFFECT EMPLOYERS’ RIGHTS TO: 
  • Prohibit employees from using marijuana at work or during work hours
  • Prohibit employees from being under the influence of marijuana at work or during work hours
  • Require employees or applicants to undergo drug testing 
STATE MARIJUANA AND OTHER LAWS MAY: 
  • Require employers to make reasonable accommodations for an employees’ off-duty marijuana use
  • Prohibit employers from discriminating against employees based on off-duty marijuana use
  • Impose employer requirements for workplace drug testing policies 
OVERVIEW

Under virtually every state law that legalizes marijuana use, employers have an explicit right to prohibit their employees from using or being under the influence of marijuana at work or during work hours. In addition, most of these laws do not place any restrictions on an employer’s right to administer drug tests. 

However, the New York City (NYC) Council has enacted a local law that prohibits employers in NYC from testing job applicants(other than applicants for certain safety-sensitive positions) for marijuana as a condition of employment. This local law went into effect on May 10, 2020. Similarly, a District of Columbia law, which has been in effect since July 22, 2015, prohibits employers from testing job applicants for marijuana before making a conditional offer of employment, unless otherwise required by law. In addition, Nevada has enacted changes to its Lawful Product Use Law that prohibit employers from failing or refusing to hire a job applicant solely because he or she tests positive for marijuana. This prohibition, which is subject tocertain safety-based exceptions, became effective on Jan. 1, 2020. Montana has also enacted similar changes, which went into effect on Jan. 1, 2022. 

Nevertheless, employment disputes can arise when a state’s marijuana law does not address whether employers may prohibit employees or applicants from engaging in off-duty marijuana use. The inconsistency between federal law and state marijuana laws also leads to questions regarding employers’ obligations. 

Read on by downloading the article below to learn more about specific state and federal marijuana laws. This is an evolving area for businesses. Don’t hesitate to contact Schauer Group with any questions. 


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This content is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice. © Zywave, Inc. All rights reserved.