• Employers can prohibit possession, use, or being under the influence of marijuana at work.
• Employers should check state laws before taking action against a person with a medical marijuana card or positive marijuana test.

A significant area of concern for employers is how to handle employee marijuana use. New state laws and changing attitudes toward the drug are raising questions about how to deal with marijuana as part of a workplace drug and alcohol policy.

One myth is that in states where marijuana has been legalized, it’s impossible to have a drug-free workplace. The truth is that while some state laws do include worker protections for medical or recreational marijuana users, employers can establish a drug-free workplace policy. The best course of action is to become familiar with the applicable marijuana laws in states where the company has employees.

Employers are not powerless. None of the current marijuana laws permit employees to possess or use marijuana at work, or work while under the influence of marijuana. Regulating marijuana use in the workplace is within the rights of employers in every state.

In states where marijuana is legal, employers do have additional considerations. An employer should pause and check state laws before firing, not hiring, or taking another negative employment action against a person who has a medical marijuana card or who tests positive for marijuana.

A state marijuana law might:

• Prohibit discrimination,
• Require an accommodation to be considered, or
• Not allow a positive test to be proof that an employee is under the influence of marijuana.

While marijuana is legal for medical or recreational use in many states, it is still illegal under federal law. It is classified as a Schedule 1 drug under the Controlled Substances Act, the same class as heroin and LSD, with no accepted medical use and high potential for abuse. If a company has employees who are required to follow Department of Transportation (DOT) regulations, the employees absolutely cannot use marijuana, as there are consequences if employees test positive.

Yet, many states have legalized the drug for recreational or medical use. Some people support its medicinal properties and see it as an alternative to opioids. States see marijuana sales as a source of tax revenue, and it’s also a social justice issue.

Why states have legalized marijuana

In 2013, the Cole memorandum was issued. In the memorandum, the deputy attorney general offered guidance to states on marijuana laws. Under the memorandum the federal government:

• Allowed states to regulate small amounts of marijuana on private property, and
• Gave states leeway to enforce their own marijuana laws outside of the federal government’s primary enforcement efforts.

This resulted in the continued legalization of marijuana under state laws. Although the memorandum was rescinded in 2018, very little has changed, and there are efforts in Congress to legalize marijuana nationally. Although marijuana legalization legislation has not gained enough traction to become law, the push for national legalization continues to gain momentum.

A workplace marijuana policy

Each state law is a little different, but in general employers do not need to allow the drug to be used on the job or in the workplace. An employee does not need to be allowed to smoke marijuana in the break room, for example.

In addition, employers do not need to accept the use of marijuana as a reason to allow an employee to be impaired at work. If an employee is impaired at work, employers can and should take action.

Employers can follow federal drug testing regulations when this is required. If employers have drivers who are covered by Department of Transportation (DOT) drug testing regulations, the company must continue to test under the DOT regulations. Drivers who test positive for marijuana need to be removed from a safety-sensitive position.

In states where recreational or medical marijuana is legal, employers should follow state requirements relating to off-duty marijuana use, drug testing, and the use of a drug test to prove impairment from marijuana. Some state laws contain protections for off-duty medical or recreational marijuana use, so those laws should be considered before taking a negative employment action based on marijuana use or a positive drug test for marijuana.

Marijuana and DOT regulations

Drivers regulated under the Department of Transportation are not allowed to use marijuana and face consequences for a positive test.