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

Description

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."