Navigating Legalized Marijuana in the Workplace

By Kathryn J. Russo, Principal, Jackson Lewis P.C.

In the last decade, there has been a proliferation of state and local laws legalizing the medical and recreational use of marijuana. While marijuana currently remains illegal under federal law, most states have legalized its use in some manner, presenting a host of practical problems for employers — especially those that conduct workplace drug testing. Employers must be familiar with the marijuana laws of the states and cities in which they operate to avoid potential legal claims.

Employers may still prohibit the use of marijuana at work as well as marijuana impairment at work. However, marijuana drug testing has become more complicated and controversial because of the legal protections for off-duty marijuana use in some states and cities, the legal protections for medical marijuana users in many states, and the lack of drug tests that detect current marijuana impairment or very recent use of marijuana.

Due to the recent trend in some states to protect off-duty use of marijuana and even prohibiting preemployment marijuana testing, many employers are discontinuing preemployment marijuana testing, especially in a tight labor market. Employers are finding it difficult to recruit qualified applicants in states where marijuana use is legal for recreational purposes, and applicants often are surprised to learn that a positive marijuana drug test will lead to withdrawal of a job offer.

If the positive marijuana drug test result is due to medical marijuana, employers must be familiar with the laws of the applicable state. Some states prohibit discrimination against medical marijuana users while other states may allow an employer to take an adverse employment action if the job is considered “safety-sensitive,” that is, a job with dangerous duties as defined by applicable state law. In states where discrimination is prohibited and the employer has safety concerns, the employer should engage in an individualized assessment and direct threat analysis required under state laws that mirror the federal Americans with Disabilities Act. This process includes discussions with the applicant and the applicant’s physician, and an assessment of the safety risk.

Reasonable suspicion marijuana testing remains permissible in most states because impairment at work is never permitted. One reason to conduct reasonable suspicion testing is to rule out drugs and/or alcohol as the cause of the impaired behaviors because it is always possible that impaired behavior can be caused by something other than drugs. Employers should make sure that supervisors and managers are trained to observe and document reasonable suspicion determinations properly, as these documented observations will be key evidence in a potential lawsuit.

In states where off-duty marijuana use is protected, employers should cite the impaired behaviors when taking disciplinary action rather than relying solely on the positive marijuana drug test result. Additionally, medical marijuana users always test positive on all drug tests administered because of their frequent use and because marijuana builds up in the fatty tissues of the body over time.

A Zero Tolerance

Employers should no longer defend zero tolerance marijuana drug testing policies by arguing that marijuana is still illegal under federal law or that the employer is a federal contractor that must comply with the federal Drug-Free Workplace Act.

First, the federal government has not enforced the law that makes marijuana illegal for some time and has permitted states to create and enforce their own laws with respect to medical and recreational marijuana. In fact, on April 1, 2022, the U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act, which is intended to decriminalize marijuana nationwide.¹ The U.S. Senate is drafting separate legislation to legalize marijuana.

Second, courts have recognized that the federal government is allowing states to regulate marijuana and therefore courts now enforce state marijuana laws despite marijuana’s illegal status at the federal level. Courts also have rejected arguments that federal contractors must follow federal law because the federal Drug-Free Workplace Act does not require drug testing and does not permit employers to regulate off-duty conduct.

However, employers with employees who are regulated by any of the U.S. Department of Transportation (DOT) agencies are never permitted to use marijuana. DOT still requires testing for marijuana. A medical marijuana card, or recreational use under state law, will not excuse a positive marijuana test result.

To make matters even more confusing, cannabidiol (CBD) and hemp products are now marketed and sold everywhere since Congress legalized hemp (having no more than 0.3% of THC, the psychoactive component of marijuana) in 2018.

Eighteen states have passed laws allowing the use of CBD, usually in oil form, for specific medical purposes (separate from medical marijuana laws), which means that employers should tread carefully when an applicant or employee claims to use CBD products for medical reasons. While many CBD and hemp products are marketed as having little or no THC, these statements may not be true, and these products may cause positive marijuana drug test results.

There has been an increase in lawsuits against employers that fired employees due to positive marijuana test results allegedly caused by CBD products. The U.S. Food & Drug Administration (FDA) does not yet regulate CBD products and has published warnings about the potentially harmful effects of CBD. Among other things, CBD can be manipulated into delta-8 THC, which is psychoactive and potentially harmful, according to the FDA and Centers for Disease Control and Prevention (CDC).

While it appears that marijuana eventually will be legalized at the federal level, employers must ensure they comply with all existing applicable laws. Specifically, employers should:

• review drug and alcohol policies for compliance with applicable drug testing and marijuana laws;
• remove marijuana from the drug testing panel in locations where testing for marijuana is prohibited and locations where off-duty use is protected, and consider removing it in other locations where it may be an obstacle in the hiring process;
• train human resources employees and other managers to engage in the interactive process with employees who use medical marijuana (or medical CBD products); and
• train supervisors to make appropriate and timely reasonable suspicion determinations.

It’s a confusing time for employers when it comes to drug testing especially with changing marijuana laws and guidance. Guidelines, toolkits, and other resources are available from the Substance Abuse and Mental Health Services Administration.^3,4

References

1. U.S. House of Representatives. Marijuana Opportunity Reinvestment and Expungement Act. Retrieved from https://www.govinfo.gov/content/pkg/CRPT-117hrpt276/pdf/CRPT-117hrpt276-pt1.pdf
2. Drug-Free Workplace Act. Retrieved from https://www.govinfo.gov/content/pkg/USCODE-2009-title41/pdf/USCODE-2009-title41-chap10.pdf
3. Substance Abuse and Mental Health Services Administration. Drug-Free Workplace Guidelines and Resources. Retrieved from https://www.samhsa.gov/workplace/resources
4. Jackson Lewis P.C. Jackson Lewis P.C. Drug and Alcohol Testing Law Advisor blog. Retrieved from drugtestlawadvisor.com