While all marijuana use remains illegal under federal law, most states have enacted laws that allow certain uses of marijuana. Many of these laws either directly restrict employers or implicate provisions of other laws that may restrict employers.
Most state legalized marijuana laws do not restrict an employer’s rights to:
- Administer drug tests (though some state laws do restrict testing for marijuana); or
- Prohibit 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 certain factors involving legalized marijuana. For example, legalized marijuana and related state and local employment laws vary as to whether they allow employers to:
- Test employees or applicants for marijuana under certain circumstances;
- Fire or discipline an employee or refuse to hire an applicant based on their status as an authorized medical marijuana user; or
- Fire or discipline an employee or refuse to hire an applicant based on a positive marijuana test.
Employers should be aware of the challenges and complexities that come with testing individuals for marijuana and become familiar with all applicable laws before implementing or enforcing any drug testing or other workplace policies regarding employee marijuana use.
To that end, this toolkit provides an overview of which laws to look for and what to look for in these laws. It also includes information about navigating the legal status of marijuana and guidance on crafting a workplace drug-testing policy that complies with all applicable restrictions. This toolkit aims to help employers understand the full legal landscape surrounding legalized marijuana and work around these challenges while establishing and maintaining compliance with all applicable laws.
Employers should also be aware that legalized marijuana is an active and often rapidly evolving area of law. Because of this, employers should regularly monitor state legislature and agency websites and other relevant sources for any changes that may affect their businesses.
