Summary of differences between federal and state regulations
A qualifying patient shall not be subject to arrest or prosecution for medical use of marijuana under the Act. A person is not authorized to undertake any task under the influence of marijuana when doing so would constitute negligence or professional malpractice.
An employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person for being a medical marijuana cardholder, unless failure to do so would cause the employer to lose a monetary or licensing related benefit under federal law or regulations. Employers cannot be penalized or denied benefits under state law for employing a cardholder. With a cardholder's permission, the Department of Health and Social Services will confirm the person's status as a registered qualifying patient to an employer.
In addition, an employer may not discriminate on the basis of a registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during work hours.
Employers are not required to allow employees to ingest marijuana in the workplace or work under the influence of marijuana. Employers may discipline employees for ingesting marijuana in the workplace or working under the influence of marijuana. However, a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana.
Court Case: Accommodation
Chance v. Kraft Heinz Foods Co., No. K18C-01-056 NEP, Delaware Superior Court, December 17, 2018
The court ruled that a medical marijuana user who was fired after a positive drug test can move ahead with a lawsuit against his former employer.
The employee claimed that his dismissal violated the Delaware Medical Marijuana Act. The act provides protections for medical marijuana patients, including prohibiting an employer from terminating a registered patient based on a positive drug test.
The employer asked that the case be dismissed, arguing that it did not have to accommodate the employee’s medical marijuana use because marijuana is illegal under federal law.
Under the federal Controlled Substances Act (CSA), it is “unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.” The act classifies marijuana as a Schedule I drug and does not make exceptions for medical use.
The Superior Court of the State of Delaware found, however, that the CSA does not make it illegal to employ someone who uses marijuana. Delaware’s medical marijuana act allows marijuana to be used for medical purposes. In addition, the court noted that it “explicitly prohibits employers from disciplining employees who use marijuana for medical reasons, and who fail drug tests because of it.”
Court Case: Workers’ compensation
In Nobles-Roark v. Back Burner, Case No. N19A-11-001 ALR (Del. Superior Ct. July 28, 2020), a Delaware court ruled that an employer did not have to pay for a worker’s medical marijuana that he was using as treatment for a workers’ compensation injury.
In an Industrial Accident Board petition, the employee’s doctor had argued that the medical marijuana treatment was “reasonable and necessary” as the employee was being weaned off opiates.
Another doctor (an expert in pain management) argued that medical marijuana was not a good treatment plan for this particular employee due to a host of other medical and mental health issues.
The board agreed and denied the employee’s request saying that he failed to satisfy his burden of proving that the medical marijuana treatment was “reasonable and necessary.” The employee appealed the decision and the case went to a Delaware court.
The court ruled that employers need only pay for “reasonable and necessary” medical services related to a work injury. While medical marijuana can effectively treat some patients, it is not considered a “reasonable and necessary” treatment for all patients.
Recreational marijuana was legalized in Delaware in April 2023. The state’s law does not impose and requirements or restrictions on employers. There are no accommodations requirements for off-duty use of recreational marijuana, and employers may set policies and discipline employees as they see fit.
Marijuana cannot be consumed in an area accessible to the public or in a moving vehicle. It is illegal to drive while under the influence of marijuana.
Delaware Health and Social Services
Delaware Medical Marijuana Act
Delaware Code, Title 16, Chapter 49A
State of Delaware Medical Marijuana Code
Delaware Administrative Code, Title 16 Health and Safety, 4470