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Medical and Recreational Cannabis and the Workplace: Drug Testing, Determining Impairment, Disability Accommodations

Safety-Sensitive Positions, Workers Compensation, and Proposed Federal Legislation

Recording of a 90-minute CLE video 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, October 5, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will advise employment counsel on the issues around medical and recreational cannabis use and legalization. The panel will address drug testing issues and potential discrimination claims related to safety-sensitive positions or medical marijuana cardholders. The panel will discuss the future of legalization and employer liability issues.


In 16 states, cannabis is legal for adults for any purpose, and 36 states allow medical marijuana. Cannabis remains listed as a Schedule I drug under the Controlled Substances Act. The executive branch can reschedule cannabis, but legalizing marijuana under federal law requires congressional action. Employers must know what restrictions they can and cannot enforce, particularly when looking at various state laws.

Employers must know how each applicable statute impacts the workplace. Many state medical marijuana laws prohibit employment discrimination against applicants and employees who use medical marijuana. States approving recreational marijuana laws are growing, and these laws generally do not contain employment protections for applicants and employees.

Employers should revise drug testing and accommodation policies. While no state law requires employers to tolerate on-the-job cannabis use or intoxication, employers must consider practical limits to employee drug testing. Testing cannot distinguish between the presence of THC due to recent use or use days and weeks before testing.

Employees who use medical and recreational marijuana will likely increase, leading to workplace accommodation requests. Employers should exercise caution with testing and responding to accommodation requests, especially where marijuana use is legal where employees live but not where they work or vice-versa.

Employers in states with legalized recreational marijuana like Colorado have found that policies against hiring marijuana users eliminate otherwise qualified job candidates and encourage some employees to leave.

Counsel should guide employer policy updates, supervisor and personnel training, and consistent practices on what is acceptable in the workplace. Employers must clearly identify positions with an inherent safety risk that would not be consistent with medical marijuana use.

Listen as our expert panel discusses the state of legalization of cannabis at the state level, the Biden administration's likely federal actions, and workplace regulations when hiring, firing, or disciplining employees. The panel will address when employers must provide medical marijuana accommodations, what the law distinguishes regarding medical vs. recreational use, and when a position can be classified as "safety-sensitive."



  1. Status of state laws
    1. Recreational use
    2. Medical permits
    3. Recent states that approved legalization
  2. Potential federal action
  3. Medical accommodations
    1. Employment discrimination claims
    2. Recreational vs. medical
  4. Drug testing
  5. Safety sensitive positions
  6. Best practices
    1. Hiring
    2. Firing
    3. Disciplining
    4. Communicating


The panel will review these and other key issues:

  • What is the status of state legalization of cannabis? What states allow recreational use?
  • What employment protections do to medical marijuana statutes include?
  • What should employers consider regarding drug testing in states with cannabis legalization laws?
  • How should employers communicate their marijuana policies and practices with employees?
  • What constitutes a safety-sensitive position?


Fitzpatrick, Robert
Robert B. Fitzpatrick

Robert B. Fitzpatrick

Mr. Fitzpatrick has over forty years of experience in all aspects of employment law and the resolution of employment...  |  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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