Details yet to be decided in Maryland

Maryland’s constitutional amendment relating to marijuana takes effect on or after July 1, 2023. Before it takes effect, the state General Assembly needs to pass legislation addressing marijuana use, regulation, distribution, and taxation.

That legislation may also provide clarity on how the state’s amendment impacts workplace drug testing. State legislation passed earlier this year decriminalizes possession of small amounts of marijuana until the constitutional amendment takes effect, but does not address use in the workplace.

Until the legislature acts, Maryland employers can continue to follow the current state law that allows drug testing when specific procedures are followed. Employers are allowed to take disciplinary action based on test results when written notice is provided.

Missouri legalizes recreational marijuana, expands rights of medical marijuana users

Under Missouri’s constitutional amendment, recreational marijuana will become legal on December 8. The amendment allows employers to prohibit marijuana use in the workplace and take a negative employment action against an employee for working under the influence of marijuana.

The amendment also adds anti-discrimination protections for medical marijuana users. Employers cannot penalize, discipline, or terminate employees, or refuse to hire applicants, because they:

• Have a valid medical marijuana card,
• Legally use marijuana off the employer's premises during nonworking hours, or
• Test positive for marijuana components or metabolites.

The law does contain some exceptions. It does not apply when:

• Following the law would cause an employer to lose a monetary or licensing-related benefit under federal law (such as a federal contract or grant),
• An employee is in a position in which legal use of a lawful marijuana product affects a person's ability to perform job-related employment responsibilities or the safety of others, or
• Medical marijuana use conflicts with a bona fide occupational qualification that is reasonably related to the person's employment.

Employer takeaways on legalized marijuana

Marijuana legalization in Maryland and Missouri adds to the patchwork of state cannabis laws employers must follow. While this brings additional considerations for drug testing, as well as hiring and firing decisions, employers should remember that:

1. There are things they can do. Employers do not need to allow employees to work unsafely or to use or have marijuana in the workplace. In all states, employers can take a negative action (such as refusing to hire, disciplining, firing) if an employee is impaired by marijuana at work or uses or possesses marijuana at work.
2. Training is critical. When a state has a medical or recreational marijuana law, supervisors should understand what they can and cannot do when it comes to testing for marijuana. They should also know how to address a medical marijuana user’s request for use of marijuana when away from work. In addition, they should know the signs of impairment due to drug use.
3. Documentation has never been more important. Because a positive drug test for marijuana does not prove impairment, signs of impairment should always be documented. An employer may be able to take a negative action based on these signs alone (such as unsafe work or sleeping on the job), or in conjunction with a positive marijuana test.

In states where marijuana remains illegal, employers may continue to follow federal law and address marijuana use in their workplace drug policy as they see fit. In addition, employees who are covered by federal Department of Transportation (DOT) drug testing rules are prohibited from using marijuana and face consequences for testing positive.

Key to remember: As marijuana legalization becomes more widespread, employers should be familiar with the laws in the states where they have employees. All employers can prohibit marijuana in the workplace but have additional considerations regarding drug testing and employee rights in states where marijuana is legal.