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Employer Policies and Medical Cannabis in a Changing Legislative Environment

Avoiding ADA Liability, Applying Workers' Comp Laws, Amending Drug Policies

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, May 19, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will address how employers can craft enforceable workplace drug policies and maintain random drug-testing procedures and post-accident drug-testing protocols as typically required by insurers in today's landscape of state cannabis legalization. The panel will delve into the legal pitfalls facing businesses and their counsel, as well as practical strategies to maintain a drug-free workplace while remaining in compliance with these laws and several recent cases.


Thirty-three states and the District of Columbia have now legalized/decriminalized the use of cannabis for recreational or medicinal use. Employers should verify that their workplace drug policies contemplate new and changing prescription drug laws. Counsel should inform clients of potential interactions between an employment policy on workers' use of such substances and ADA, FMLA, or other legal requirements.

During the first wave of employment cases concerning cannabis use since legalization began, the courts tended to side with employers. Both California and Colorado courts ruled that employers were within their rights to terminate employees who tested positive or used marijuana in violation of a company policy of a "drug-free workplace" or "zero tolerance." The tide has turned in several states, including Arizona and Delaware, where state supreme courts have ruled that employers had wrongfully terminated employees who were registered medical cannabis users under state laws, but failed workplace drug tests.

Employers should consider whether asking job applicants to submit to drug testing during the hiring process is appropriate and decide whether a candidate's positive cannabis test result is a reasonable bar to employment. An employer may apply a higher level of scrutiny on drug use by candidates for safety-sensitive positions and bar impaired employees from work due to legal or illegal substance abuse. Still, employers must transparently and consistently enforce those policies.

Additionally, employers must be aware of the limitations of cannabis testing. While breathalyzers can reveal whether a worker is under the influence of alcohol at the time of the test, cannabis tests can only indicate whether the worker has used such substances in the recent days or weeks, which may be legal in the state. If a worker has a valid prescription to use these substances, then employers must navigate particularly tricky situations.

Listen as our expert panel discusses current national trends in medical cannabis and wrongful termination cases, as well as business costs of excluding potential employees for cannabis use. The panel will offer best practices for structuring workplace drug policies that not only optimize a business workforce but maintain compliance with state and federal laws.



  1. Examining the impact of cannabis legalization on the hiring process
  2. Wrongful termination
    1. Pro-employer series of state cases
    2. Pro-employee series of state cases
    3. Trends
  3. Scientific analysis of current cannabis and drug testing and the issues such testing presents for employers
  4. Interplay of state and federal laws, including the ADA and FMLA, in workplace drug policies
  5. Best practices for employers in structuring workplace drug policies and performing drug testing of employees


The panel will review these and other relevant topics:

  • What are the national trends in cannabis legalization and how do they affect employers?
  • What are the risks of excluding potential employees based on medical cannabis use?
  • What are best practices for performing random and post-accident drug testing in the workplace?
  • How can employers maintain a drug-free workplace and remain compliant with applicable state and federal laws?


Ferrara, Melissa
Melissa M. Ferrara

Reed Smith

Ms. Ferrara represents employers and businesses in a broad range of matters pertaining to employment and labor law....  |  Read More

Vorobiev, Jill
Jill S. Vorobiev

Reed Smith

Ms. Vorobiev has been assisting clients with their significant labor and employment matters for more than 20 years. She...  |  Read More

Zwisler, David
David L. Zwisler

Ogletree Deakins Nash Smoak & Stewart

Mr. Zwisler’s broad range of labor and employment experience includes overseeing and conducting comprehensive...  |  Read More

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