While all marijuana use remains illegal under federal law, most states have enacted laws that allow certain uses of marijuana or a marijuana derivative. None of these laws place any restrictions on an employer’s right to administer drug tests or to prohibit their 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 a positive test for marijuana. As a result, several courts have issued decisions on this issue. These decisions will answer this question for employers in some legalized marijuana states and may be helpful for employers in others.

This Compliance Overview provides a general summary of federal and state marijuana laws.

STATE MARIJUANA LAWS DO NOT AFFECT EMPLOYERS’ RIGHTS TO:

• Prohibit employees from using marijuana at work or during work hours

• Prohibit employees from being under the influence of marijuana at work or during work hours
• Require employees or applicants to undergo drug testing

STATE MARIJUANA AND OTHER LAWS MAY:

• Require employers to make reasonable accommodations for an employees’ off-duty marijuana use
• Prohibit employers from discriminating against employees based on off-duty marijuana use
• Impose employer requirements for workplace drug testing policies

 

OVERVIEW

Under virtually every state law that legalizes marijuana use, employers have an explicit right to prohibit their employees from using or being under the influence of marijuana at work or during work hours. In addition, most of these laws do not place any restrictions on an employer’s right to administer drug tests.

However, the New York City (NYC) Council has enacted a local law that prohibits employers in NYC from testing job applicants (other than applicants for certain safety-sensitive positions) for marijuana as a condition of employment. This local law went into effect on May 10, 2020. Similarly, a District of Columbia law, which has been in effect since July 22, 2015, prohibits employers from testing job applicants for marijuana before making a conditional offer of employment, unless otherwise required by law. In addition, Nevada has enacted changes to its Lawful Product Use Law that prohibit employers from failing or refusing to hire a job applicant solely because he or she tests positive for marijuana. This prohibition, which is subject to certain safety-based exceptions, became effective on Jan. 1, 2020. Montana has also enacted similar changes, which go into effect on Jan. 1, 2022.

Nevertheless, employment disputes can arise when a state’s marijuana law does not address whether employers may prohibit employees or applicants from engaging in off-duty marijuana use. The inconsistency between federal law and state marijuana laws also leads to questions regarding employers’ obligations.

FEDERAL AND STATE MARIJUANA LAWS

The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I substance, which means it is considered to have high potential for abuse and no currently accepted medical applications. All uses of Schedule I substances are illegal under the CSA. In addition, the federal Food, Drug and Cosmetic Act (FDCA) prohibits the use, dispensing and licensing of substances, such as marijuana, that have not been approved by the federal Food and Drug Administration.

• CBD-only – This category includes states that allow only tightly limited uses of a substance called cannabidiol (CBD), which is a derivative of marijuana that does not produce psychoactive effects in users and is usually administered in oil form. These states have not legalized the use of marijuana plants for any purpose and generally allow CBD use only for the treatment of one or more specified medical conditions, such as epilepsy in children. Because of these factors, employment-related issues rarely arise under these laws. The table below lists the states that fall into this category.

Alabama	Georgia	Iowa	Indiana
Kentucky	Louisiana	North Carolina	South Carolina
Tennessee	Texas	Wisconsin	Wyoming

 

• Medical-only – This category includes states that allow the use of marijuana plants for medical purposes but do not allow any recreational use. Out of the three types of state marijuana laws, medical marijuana laws generally underlie most employment-related disputes involving the drug. The table below lists the states that fall into the medical-only category.

Arizona	Delaware	Maryland	Montana	New Mexico	Ohio	Utah
Arkansas	Florida	Minnesota	Mississippi	Oklahoma	Pennsylvania	West Virginia
Connecticut	Hawaii	Missouri	New Hampshire	North Dakota	Rhode Island

 

• Recreational and medical – This category includes states that allow individuals who are age 21 or older to use marijuana plants for recreational purposes. Each of these states also has a separate law governing the use of marijuana for medical purposes. The table below lists the states that fall into this category.

Alaska	Colorado	Maine	Montana	New York	South Dakota*
Arizona	District of Columbia	Massachusetts	New Jersey	Nevada	Vermont
California	Illinois	Michigan	New Mexico	Oregon	Virginia
					Washington

*On Nov. 24, 2021, South Dakota’s Supreme Court struck down the state’s legalization law.

 

Links and Resources

• National Conference of State Legislators’ website on state marijuana laws

• Federal drug testing requirements for commercial motor vehicle operators and federal contractors

 

This Compliance Overview is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. © 2018-2021 Zywave, Inc. All rights reserved.