Marijuana and the Workplace

January 4, 2016


While 23 states and the District of Columbia have decriminalized marijuana for medicinal use—with four states and DC legalizing recreational use—the sale and use of the drug remains illegal at the federal level. Understandably, the discrepancies between state and federal law have raised questions for employers. In most states, an employer can terminate employment for on-duty and off-duty use even if the employee has a medical marijuana card. Because the drug is still illegal at the federal level, employers are not required to make accommodations for use under the Americans with Disabilities Act. Some states, however, have anti-discrimination language written into their medical marijuana statues that may require employers to accommodate the presence of some amount of marijuana in an employee’s system while that employee is on duty.In most states, an employer can terminate employment for on-duty and off-duty use even if the employee has a medical marijuana card. Because the drug is still illegal at the federal level, employers are not required to make accommodations for use under the Americans with Disabilities Act.

In most states, an employer can terminate employment for on-duty and off-duty use even if the employee has a medical marijuana card. Because the drug is still illegal at the federal level, employers are not required to make accommodations for use under the Americans with Disabilities Act. Some states, however, have anti-discrimination language written into their medical marijuana statues that may require employers to accommodate the presence of some amount of marijuana in an employee’s system while that employee is on duty.

Complicating the matter further are the differing needs and preferences of employers. Some employers want to prohibit and test for marijuana because use of the drug could disrupt operations, because they have safety-sensitive jobs, or because they are legally required to do so. Other employers want to allow off-duty use and avoid testing altogether—or as much as possible.

There’s no one-size-fits-all solution, but employers who want a more lenient policy should focus on detecting signs of impairment on the job. Instead of testing, which doesn’t distinguish between on-duty and off-duty use, companies should keep an eye out for poor performance and discipline accordingly.

We expect this subject, and how employers decide to address it, will continue to evolve as the number of states taking a more lenient stance increases.