Last month, the Washington State Senate approved Bill 5123, prohibiting a business from refusing to hire a worker due to a positive drug test that screens for nonpsychoactive cannabis metabolites. If it is signed, Washington, which has legalized the recreational use of marijuana, will join a handful of other states that have enacted similar legislation prohibiting adverse employment action for workers’ off-duty marijuana use. Although marijuana is illegal under federal law, an increasing number of states are decriminalizing marijuana use for medicinal and recreational purposes. As a result, workplace policies may need to be adjusted.

Federal Marijuana Laws

Although there have been some recent efforts in Congress to decriminalize marijuana, it remains listed as a Schedule I drug under the Controlled Substances Act, which makes its use, sale, or distribution illegal. As such, businesses that pursue federal contracts or grants must maintain a drug-free workplace to be considered, regardless of their state’s law. This prohibition also extends to commercial vehicle drivers, regardless of the state they work in. 

State Marijuana Laws

Many states have taken a more relaxed attitude toward marijuana in recent years, as thirty-nine states and the District of Columbia have approved the drug for medicinal purposes. In addition, twenty-one of these states, along with the District of Columbia and Guam, have legalized cannabis for recreational use. 

The conflicts between state and federal laws, as well as the variations among the states’ laws, have led to confusion for employers. In some states, employers have been able to restrict their employees from using cannabis outside of the workplace. Colorado, known as one of the most cannabis-friendly states in the country, does not protect off-duty use by workers, as the state’s highest court in Coats v. Dish Network LLC, 350 P.3d 849 (Colo. 2015) ruled that the drug is still prohibited by federal law. 

In contrast, California prohibits employment discrimination (Assembly Bill 2188) related to off-duty use of cannabis that does not affect an employee’s work. California employers cannot use drug test results that find “non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids'' as a reason to terminate employment because the test results demonstrate only that the person has consumed cannabis in the last few weeks and do not prove impairment on the job. The law, which takes effect January 1, 2024, does not apply to the following employees:

• Those in building and construction trades
• Those whose jobs require federal background checks
• Those who are drug-tested to preserve eligibility for federal funds

Employers can still test for tetrahydrocannabinol (THC), the psychoactive component of marijuana. However, an adverse action taken as a result of a test that indicates the presence of the nonpsychoactive metabolites can leave the employer open to a claim of wrongful termination or discrimination. Other states have followed California’s lead, including Connecticut, Illinois, Rhode Island, New York, New Jersey, and Montana. 

Conversely, other states have taken a more hardline approach in favor of employers. The Nevada Supreme Court denied an employee’s claim in Ceballos v. NP Palace, LLC, 514 P.3d 1074 (Nev. 2022) that his firing should be overturned. Nev. Rev. Stat. § 613.333 creates a private right of action for employees who are discharged from employment for engaging in “the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” The court found that the statute did not protect recreational marijuana use, because, although legal in Nevada, it was still illegal under federal law. In Georgia, where cannabis is illegal (Georgia Controlled Substances Act), employers can test workers for marijuana and enforce zero-tolerance policies.

How to Advise Employers to Proceed

Here are some helpful tips to competently advise your business-owning clients with employees:

Familiarize Yourself with Applicable Laws

It is important for attorneys who advise employers to be familiar with the federal and state laws that impact drug testing policies. In states in which marijuana use is legal, federal law may govern in certain situations. For example, the federal law that prohibits marijuana use and allows drug testing for safety-sensitive positions and workers such as commercial drivers and pilots, applies regardless of contrary state law. In addition, the applicable laws for businesses that operate in multiple states and/or work with the federal government may vary. 

Encourage Employers to Review Current Employment Policies

All employment policies must comply with applicable federal and state laws, and employers must communicate and consistently apply their policies to all employees. When creating a workplace policy regarding marijuana use, the employer should clearly state any drug testing methods that may be used and any consequences (where permitted by state law).

Accommodating Users of Medical Marijuana

In states that permit the medical use of marijuana, employers should include a provision in their workplace policy that specifically addresses off-duty medical use by employees. Employers may consider allowing the use of medical marijuana off the clock if employees do not use it during a time period that could lead to impairment during working hours. 

Educate Employees

In states in which employers can take adverse action based on an employee’s positive drug test, employees should be informed of the consequences of a positive drug test and the importance of complying with company policies and applicable laws. In addition, even in states where drug tests are no longer permitted to be used as the basis of an adverse employment action, employees should be warned that impairment during working hours is not allowed. Companies should devote time and resources to educating their workers about this topic.

Use Reasonable Suspicion

In states in which certain drug tests are no longer permitted as the basis for an adverse employment action, employers can develop other types of monitoring systems that use other methods to detect impairment on the job.

To learn more about crafting workplace policies regarding marijuana use for your business-owning clients with employees, and for your own law firm, sign up for our upcoming webinar, Cannabis: Updating Workplace Policies and Practices in Changing Times, taking place May 15 at 1 p.m. (ET).