Aug 04, 2021

Cannabis Laws Affecting Employers: State Laws and Employer Guidance

As medical and recreational cannabis laws evolve, and with federal law currently in opposition to many state laws, employers face challenges when developing workplace drug policies and understanding their limitations in the area of drug testing. Use the enclosed best practice recommendations and chart to see how YOUR business may be affected!

Best Practices and Tips for Employers

This guide generally uses the word cannabis to refer to marijuana because cannabis is the more scientifically accurate name. For HR purposes, however, the terms cannabis and marijuana are interchangeable. Nonetheless, to avoid possible confusion, the state-specific notes below use whichever term the particular law uses.

State laws regarding cannabis change rapidly compared to other employment laws. Consequently, recent changes may not be reflected here. The chart featured below is general HR guidance; employers with additional questions should contact an attorney for a legal opinion as well as their insurance carriers.

Cannabis laws vary from state to state. Multistate employers should review the laws of all states where they have employees. 

Employers should be aware that other laws (besides the state cannabis law) may implicate employers’ ability to regulate employee cannabis use,including but not limited to:

1. Federal laws (e.g., Department of Transportation regulations, the Drug Free Workplace Act);

2. State disability discrimination law;

3. Lawful off-duty conduct law;

4. Religious accommodations;

5. Wrongful termination in violation of public policy; and

6. State drug testing law.

Currently, employers may have a drug policy prohibiting employees from using or working under the influence of cannabis. However, employers should review potential obligations under both the applicable cannabis law and the laws listed above when they apply their policy. If an employee requests an accommodation to use cannabis during work or to work while under the influence of cannabis, employers should consult with an attorney. 

From an HR perspective, the risk-tolerant approach is usually to terminate an employee who tests positive for cannabis and deal with a potential lawsuit. In contrast, the risk-averse approach is usually to accommodate off-duty cannabis use (absent undue hardship or direct threat).

Employers should note that municipal cannabis laws, eligibility for unemployment insurance, and covered expenses under workers’ compensation laws are outside the scope of this chart.