Medical or recreational marijuana is already legal in most states, and it’s possible that the federal government will legalize marijuana soon. Many employers are asking what they should do under these inconsistent legal circumstances. For one, employers should be talking about the growing tendency toward legalizing marijuana and examine how that tendency should be reflected in their policy decisions.
As of February 2021, marijuana is fully illegal in only six states—Alabama, Tennessee, South Carolina, Kansas, Wyoming, and Idaho. Please check out our Marijuana Map to review the workplace marijuana laws in all states.
The questions that employers should be asking and making decisions about include the following:
- What are the marijuana laws in my state?
- Should I be testing for marijuana?
- Can I fire an employee who tests positive for marijuana?
- If an applicant tests positive for marijuana, could I still hire that person?
- Have I addressed marijuana laws in my company’s drug-free workplace policy?
Depending on which state an employer operates in, it is important to recognize there are some situations where an employer might provide accommodation for medical marijuana use. But let us be clear that for employers regulated by the Department of Transportation (DOT), marijuana is firmly prohibited. A positive DOT marijuana test is a violation that leads to consequences. In non-DOT situations, employers must be careful with regard to medical marijuana laws and, perhaps based on state law or case law, may consider reasonable accommodation requests.
Employers continue to have a right to maintain a safe and drug-free workplace, so testing employees for marijuana and other drugs remains legal. Even so, it is wise to carefully consider each case in which a positive marijuana test would be the reason for termination of employment. Do not make any quick decisions. Consider the medical marijuana card, if applicable. Seek legal advice and expert consultation. The company’s policy should be strictly followed and, if the policy requires a drug test, then be sure to perform the test.
Preemployment Testing for Marijuana
Always be aware of your state laws concerning drug testing for employers and job applicants. Be extra careful if applicants state they have a medical marijuana card. If your policy requires preemployment drug testing, then conduct the test. If the test is positive and a medical marijuana card is presented, use caution when making the final decision on whether to hire the applicant.
Most employers are conducting preemployment drug testing, including testing for marijuana. Again, this is legal, but there are a few notable exceptions, including the following:
- In New York City it is prohibited to drug test an applicant for marijuana except for those who would fill certain safety-sensitive positions.
- In Nevada, an employer cannot refuse to hire someone solely due to a positive marijuana test. There are exceptions in Nevada for safety-sensitive positions and certain medical positions.
- A 2019 Oklahoma law prohibits employers from discriminating against an employee or applicant solely on the basis of a person’s status as a medical marijuana licensee.
We are seeing versions of the Oklahoma law pop up in other states. Be careful of any adverse action taken against an applicant or employee solely on the person’s status as a medical marijuana card holder. Discuss the situation and retain expert advice. If your policy is to conduct testing, always conduct the testing.
More Restrictive States Regarding Marijuana
Some states have more restrictive laws or case law regarding employment and marijuana issues. It is vital that employers talk to legal counsel or seek advice from an expert. Some of the more restrictive states include Arizona, Connecticut, Maine, Delaware, Pennsylvania, Rhode Island, and New Jersey.
An Arizona case was decided in favor of an employee who tested positive on a post-accident drug test when the employee presented a medical marijuana card. The case was settled prior to any damages being awarded.
Delaware and New Jersey courts have held that medical marijuana users can proceed with lawsuits against employers after terminations that are based on positive drug tests. Various civil rights and antidiscrimination state laws can come into play in such cases.
Employers should not refuse to hire applicants solely because they state they are medical marijuana users. Follow your company drug-free workplace policy and check with your attorney or other expert when there is a question. If your policy is to test for marijuana, always conduct the test.
Where Can Employers Find Help with Marijuana Issues?
National Drug Screening (NDS) continues to be in the forefront of marijuana in the workplace issues. Our ongoing partnership with Dee Mason and Working Partners®, based in Ohio, keeps us up-to-date with state laws and case law regarding employees, employers, and marijuana. In addition, here are three resource pages available for your assistance:
- A checklist of what to consider in developing or revising a drug-free workplace policy in regard to marijuana law: “Checklist of Impacting Issues for Employee Use of Marijuana.”
- State Specific Marijuana Information for Employers: This is a state-by-state guide to workplace marijuana laws.
- A comprehensive guide on what employers should be discussing that also helps employers find answers about marijuana in the workplace: “Workplace Considerations for Marijuana Use.”
More NDS articles on medical and recreational marijuana, testing for marijuana, and decisions to make when an applicant or employee tests positive are available in the following resources: