Marijuana Laws and the 2022 Workplace

Growing acceptance of marijuana use in recent years has led to the proliferation of state laws legalizing medical and recreational cannabis consumption, as well as a push for employment protections for off-duty use. Here's what employers need to know about evolving marijuana laws and their impact on the workplace.

State Law Trends

"As more and more states legalize recreational cannabis use, employers should make some decisions about whether and to what extent they will be guided by federal law, which still classifies cannabis as a Schedule I drug like heroin and cocaine," said Catharine Morisset, an attorney with Fisher Phillips in Seattle.

Despite the federal status of cannabis, 37 states have now approved medical marijuana use, and 18 of those states and Washington, D.C., also have approved recreational use. Employers should note, however, that workplace protections vary by state, and some cities have their own rules.

Many of the earlier states to legalize cannabis use, such as California and Colorado, provide few or no job protections for off-duty use. For example, Colorado has a statute prohibiting employers from interfering with employees' lawful off-duty conduct, but the Colorado high court has said that "lawful activity" is defined by both state and federal law. Off-duty cannabis use is not protected in Colorado because it is illegal under federal law, the court has held.

Newer laws tend to afford more job protections. Some states protect registered medical marijuana patients but not recreational users, while others, such as New Jersey and New York, provide employment protections for both.

"The trend is growing across the states to grant employment protections for both adult use and medical use," said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. She noted that employers can still discipline workers for being high on the job or for bringing cannabis products onto the premises.

"Even states that have legalized cannabis to some degree may still have state laws that prohibit workplace use or even the presence of cannabis or cannabis-containing products at work," Morisset said.

Michael Freimann, an attorney with Greenspoon Marder in Denver, suggested that employers review their policies and practices in light of evolving laws: Will they want to continue to screen applicants? What is their position on off-duty use?

"At the end of the day, I expect employers to have these internal discussions and then hopefully memorialize their decisions with updated and marijuana-specific policies," he said.

Cannabis decriminalization affects multiple aspects of the workplace, Morisset noted, including recruiting efforts, safety plans, drug-testing policies and even social outings with clients.  

Some policy decisions will come down to employers' risk tolerance and culture, she said. For example, are they OK with employees using cannabis with clients?

Review Drug-Testing Policies

State laws vary on when a positive marijuana test can be used to discipline or refuse to hire a worker and what steps employers have to take before they can make adverse employment decisions.

Some jurisdictions, including New York City and Philadelphia, prohibit pre-employment drug testing for marijuana. Nevada law bars employers from taking adverse action based on a positive pre-employment marijuana test result. 

"Employers who operate in those jurisdictions may need to make adjustments to their existing policies," said Christopher Kelly, an attorney with Cozen O'Connor in Philadelphia.

However, he noted, even where such laws have been passed, there are generally exemptions, including for safety-sensitive positions; for those involving driving or piloting vehicles, ships or planes; and where testing is required by other laws. Some workers, such as drivers who are subject to the U.S. Department of Transportation's rules, must regularly pass drug tests, regardless of state and local cannabis laws.

"Employers not covered by federal rules likely have some thoughtful decisions to make about whether to include THC in any or just some drug screening panels, such as pre-employment or post-accident," Morisset said. THC is the psychoactive component in cannabis.

Employers that drug test typically use a five-panel screen that includes amphetamines, cocaine, marijuana, opiates and phencyclidine (PCP).

"More and more employers are deciding to stop drug testing altogether or are giving the five-panel test but asking the lab not to provide the results for THC," Mastroianni noted.

Due to staffing shortages, Freimann expects to see more private companies loosen hiring requirements and no longer test for marijuana use as a condition of employment.

Workplace safety considerations remain paramount and vary depending on the type of workplace, Morisset said. "Employers should decide their policy, have a plan and clearly communicate it to employees."  

She recommended that employers have their policies vetted by local employment counsel because legal rules and practical effects vary greatly by state.

Will Federal Law Change?

At the federal level, marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means it is deemed to have no medical value and a high potential for abuse.

Recent efforts to reform cannabis law have stalled in Congress.

"Federal cannabis law reformers had hope in 2021 with what was perceived as a more liberal administration, broad support by Americans and even bipartisan backing," Morisset observed.

However, the bills introduced in 2021, such as the sweeping Cannabis Administration and Opportunity Act, did not get very far. "This and three other bills are still circulating Capitol Hill, some of which compete with one another," she explained.

Kelly expects to see small, incremental changes at the federal level, which could include proposals to reduce or remove criminal penalties for marijuana-related offenses or to allow financial institutions to handle money from marijuana businesses that already operate legally under state law. 

"While change is always possible at the federal level, employers are more likely to see significant changes coming from state and local legislation," he said. "Unless and until marijuana becomes legalized at the federal level or state laws become more uniform, employers face a complicated and ever-changing landscape."