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.
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.
Not Legal
The following states still classify marijuana as a fully illegal drug:
Alabama
Georgia
Indiana
Idaho
Iowa
Kentucky
Kansas
Mississippi
North Carolina
Nebraska
South Carolina
South Dakota
Texas
Tennessee
Virginia
Wyoming
Wisconsin
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.
Alaska
Marijuana is recreationally and medically legal, but employers are not required to permit any kind of use in the workplace.
Arizona
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.
Arkansas
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.
California
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.
Colorado
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.
Connecticut
Medically legal only. Employers can’t discriminate against legal cardholders but may prohibit use during work hours and discipline employees for breaking that rule.
Delaware
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.
D.C.
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.
Florida
It is only medically legal. Employers do not need to accommodate use or allow employees to work under the influence of the substance.
Georgia
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.
Hawaii
Medical only, while small recreational amounts are decriminalized. Using is not authorized in the workplace.
Illinois
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.
Maine
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.
Massachusetts
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.
Michigan
Medical and recreational. Employers don’t need to accommodate use and may fire based on a positive test result.
Minnesota
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.
Montana
Medical allowed. Employers don’t have to accommodate medical use and can include a provision prohibiting medical marijuana use.
Nevada
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.
New Hampshire
Medical only. There’s no requirement to allow use on company property. Employees can discipline employees for being under the influence at work.
New Jersey
Medical marijuana only. There is no requirement for accommodation of medical use.
New Mexico
Medical use only. Employers have a right to fire medical patients for positive drug testing.
New York
Medical only. There may be no discrimination against medical patients, but employers can enforce a drug policy that prohibits working under the influence.
North Dakota
Medical only. Employers can discipline their employees for using or possessing weed in the workplace.
Ohio
Medical use only. Employers need not accommodate medical use and may enforce no tolerance policies.
Oklahoma
Medically legal only. Employers cannot discriminate against medical patients but may prevent use and impairment in the workplace.
Oregon
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.
Pennsylvania
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.
Rhode Island
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.
Vermont
Medically and recreationally legal. Employers do not need to accommodate use and may regulate and prohibit use as they see fit.
Washington
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.
West Virginia
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.
David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.
David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.
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