Recreational Marijuana Legislation and the Workplace

There are a number of reasons for upholding a drug free workplace–increased productivity, fewer errors, and a safer working environment are just a few of them.  With an increasing number of states passing laws legalizing recreational marijuana, employers are raising a number of questions and voicing serious concerns about what this means for their desired drug-free workplace. While the laws and policies in place are far from clear, employers still have the right to perform drug screening on both their current employees and prospective applicants.

Not only are additional jurisdictions considering similar legislation, but there is also the federal issue of which to keep apprised.  These laws have a significant impact on employers and many of their policies and procedures, including hiring, promotion, safety, and drug-free policies.

This map depicts locations that have statewide and/or local recreational marijuana laws that impact employers. Below the map you will find a summary of each law.

As of September 2017, twenty-nine states and the District of Columbia have laws that legalize marijuana in some form–whether medical or the more expansive recreational, or some combination of both.  Specifically, eight states and the District of Columbia have laws that legalize the use of marijuana for recreational purposes.

Click any state link below to view a summary of the laws that exist within its borders.

*The amount of marijuana that can be possessed varies in each state, but is generally 1 ounce (Maine has a particularly higher limit at 2.5 ounces).

 

Employer Tips

The laws and cases interpreting them are changing quickly with regard to recreational marijuana.  Employers should keep apprised of any changes to their state and local laws, regulations, and case law, and revisit their drug and alcohol policies frequently to ensure compliance.  All drug and alcohol policies should be transparent and apply consistent treatment.  They should be very clear and specific and include the following:

  • An explicit ban of the use, sale, transfer, and possession of alcohol and illegal drugs, including medical and recreational marijuana while at the workplace and whenever on duty, wherever the employee is located. (Employers who receive federal funds and are subject to the Drug-Free Workplace Act of 1988 are required to prohibit the use/possession of federally controlled substances on their premises.)
  • Specifically prohibit employees from being under the influence of alcohol or illegal drugs, including medical and recreational marijuana while on property or while on duty.
  • A notation that marijuana, for whatever reason, remains illegal under federal law.
  • For safety-sensitive positions, including driving or operating machinery, employers should consider adding a ban on using marijuana a certain amount of hours prior to an employee’s shift and include that there is a presumption that the employee is under the influence if he or she consumed marijuana within that timeframe.
  • Answers to the following questions: Exactly who is subject to testing?  How will the testing be administered?  What exactly are the consequences of positive results of those tests?

This information is presented for general educational purposes and is provided solely for the convenience of its readers. It is not a substitute for legal advice. Consultation with qualified legal counsel is recommended for all matters of employment law.

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