With over half of the 50 states legalizing some form of cannabis, it’s important for employers to understand the regulations around marijuana consumption and consider how its growing use will impact the workplace.
Whether it’s medically legal, recreationally legal, or still illegal in your state, here’s what you need to know about marijuana use in the workplace.
Cannabis Legalization and How it Affects Workplace Drug Policies
While commonly referred to as marijuana, the correct term (and also the genus name) is cannabis.
While the term cannabis is the appropriate and preferred terminology, for the purposes of this article, both terms are used interchangeably.
The distinction between these two words, in part, has affected the way some employers view marijuana drug and alcohol use. While many states currently recognize the medicinal benefits of the plant, there are still many individuals and companies who associate it with illicit use, drug addiction, and substandard work performance.
Additionally, none of the 50 United States requires employers to allow marijuana in the workplace. Workplace drug policies vary from company to company. Understanding your state’s drug laws and grasping the facts about recreational and medical marijuana in the workplace is the best place to start as you consider your employees and the success of your business.
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3 Stages of Cannabis Legalization
Using marijuana is not fully legal in all states. It’s illegal under federal law.
Seventeen states still do not permit any use, while 33 have approved the use of medical marijuana and 11 have fully legalized it for both medicinal and recreational marijuana use. Let’s explore what these three stages of legalization mean for your business.
The following states still classify marijuana as a fully illegal drug:
- North Carolina
- South Carolina
- South Dakota
In these states, there is no allowance for marijuana use at all. Workplace policies typically ban any use of the substance in these states, and employees are aware that any sign of use, like a positive drug test or an avoidance of drug testing could lead to an exit from the company.
Legal for Medical Use
On the other hand, states where marijuana is a medically legal drug have different considerations. While marijuana in all its forms remains illegal under federal law through the Controlled Substances Act (CSA), state laws for medical marijuana may permit the medical use of the substance with restrictions and under special circumstances.
While many employers still aim for a drug free workplace, there has been a recent push for more states to add explicit protection clauses as medical marijuana regulations are developed and adopted. Other states have similar policies but exclude a few “safety sensitive” jobs from this protection.
Most state medical marijuana regulations, however, will allow an employer to completely ban the use of medical marijuana at work, just like other drug and alcohol. Laws vary on whether or not an employee can be protected for medical marijuana use while off-duty and off the property.
Legal for Recreational Use
State recreational marijuana laws typically regulate consumption by banning the use of the substance in public as well as while on the job. Many of these regulations explicitly point out that their recreational use statutes don’t prevent an employer from enacting their own drug policies regarding use during working hours. They also don’t typically require an employer to allow or accommodate for recreational use of marijuana. In most cases, they also won’t allow an employee to challenge an employer’s decision to terminate them following a violation of their marijuana use drug policy.
What Do the Laws in 50 States Say About Marijuana at Work?
Find your state below to learn how its marijuana laws impact employers. If your state is not listed, marijuana is not a legal drug.
Note: please make sure to check with your own lawyers regarding the most up-to-date legislation, as laws around marijuana use are rapidly changing in the states.
Marijuana is recreationally and medically legal, but employers are not required to permit any kind of use in the workplace.
It is only medically legal, and employers can’t discriminate against medical marijuana cardholders. However, they may fire employees who use or possess it on company property or during working hours.
Medical only. Employers with more than 9 employees can’t discriminate against medical patients. Employers can take action against any employee for use at work/during work hours. Testing positive for marijuana does not qualify as good faith. Safety-sensitive positions can be excluded.
Medically and recreationally legal. Employers do not have to accommodate use in the workplace and may fire any employee who tests positive for marijuana drug use.
Medically and recreationally legal. Employers do not have to accommodate any kind of use at work and can still fire an employee that tests positive for marijuana, regardless of off-duty use or valid medical card.
Medically legal only. Employers can’t discriminate against legal cardholders but may prohibit use during work hours and discipline employees for breaking that rule.
It is only medically legal. Employers may not discriminate against medical card holders unless it would lead to licensing or financial issues for the employer. A company can take action against any employee who possesses or uses marijuana on premises or during work hours.
Medical and recreational marijuana use is legal. The medical statute doesn’t address employment, while the recreational statute allows employers to restrict recreational use by employees.
It is only medically legal. Employers do not need to accommodate use or allow employees to work under the influence of the substance.
Medical only. Employers don’t need to allow it and can enforce zero tolerance policies to ensure workplace safety. Testing policies allow for termination based on a positive test result alone.
Medical only, while small recreational amounts are decriminalized. Using is not authorized in the workplace.
Medical use only. Employers can’t discriminate against patients, with a few exceptions. Employers can take action based on good faith belief that an employee used weed on company property, but employees can challenge this determination.
Recreational and medical use allowed. Employers can’t discriminate against patients unless it would lead to licensing/financial issues. However, they are not required to allow or accommodate on-premises use.
Medical and recreational. Employers do not need to allow for on-site use, with the exception of using the drug to treat a disability. Employers with more than 6 employees, then, must accommodate off-site use for disabled employees. They can restrict recreational consumption.
Medical and recreational. Employers don’t need to accommodate use and may fire based on a positive test result.
Medical only. A company can’t discriminate against registered marijuana users, with a few exceptions. Action can be taken against anyone who uses or possesses weed on property.
Medical allowed. Employers don’t have to accommodate medical use and can include a provision prohibiting medical marijuana use.
Medical and recreational. Employers don’t have to allow use at the workplace but must make reasonable accommodations for medical patients as long as it does not pose a threat.
Medical only. There’s no requirement to allow use on company property. Employees can discipline employees for being under the influence at work.
Medical marijuana only. There is no requirement for accommodation of medical use.
Medical use only. Employers have a right to fire medical patients for positive drug testing.
Medical only. There may be no discrimination against medical patients, but employers can enforce a drug policy that prohibits working under the influence.
Medical only. Employers can discipline their employees for using or possessing weed in the workplace.
Medical use only. Employers need not accommodate medical use and may enforce no tolerance policies.
Medically legal only. Employers cannot discriminate against medical patients but may prevent use and impairment in the workplace.
Medical and recreational. They are not required to accommodate for use and may fire any employee for use even if they were off duty with a valid medical card at the time.
Medical only. Employers can’t discriminate based on medical patient status and may only discipline employees for working under the influence when their conduct falls below what is normally acceptable.
Medical use only. Employers need not accommodate for the medical use of marijuana, but they can’t penalize an applicant or employee based on their medical patient status.
Medically and recreationally legal. Employers do not need to accommodate use and may regulate and prohibit use as they see fit.
Medical and recreationally legal. Employers are allowed to establish strict policies that prohibit use. They may also refuse to hire someone based on a positive drug test if their policies outline it.
Medical only. A medical card is not grounds to discriminate against an employee. Employers can discipline when an employee falls below the accepted standard of care while under the influence.
What Does It Mean for Employers?
So, what does this all mean for you as an employer? You’ll need to stay within your state laws regarding medical or recreational use of marijuana in relation to employment.
Beyond that, it’s important to know that most cases side with employers who take adverse action against employees who test positive or possess a valid medical card. As it is still a Schedule 1 drug under federal law, this often supersedes any state laws protecting use.
As you create your employer drug policy, consider the following:
- Proper training to enforce the policy
- Clearly defined parameters for use and possession
- Established rules for testing after accidents
- Established rules for marijuana related arrest or conviction
Making your policy as specific as possible is to your benefit. If you need help nailing down the details of your employment policy around marijuana at work, contact an expert at Scoutlogic.
ScoutLogic is not a law firm. You should always check with qualified counsel before you make any changes to your background check program. If you need a qualified attorney, we would be happy to make a referral for you.