Some New Marijuana Laws Protect Off-Duty Recreational Use

As the trend to legalize cannabis use continues, employers should note that some state and local laws now protect workers who consume recreational marijuana while off duty.

Multistate employers are likely familiar with laws that provide job protections for registered medical marijuana patients who use cannabis in accordance with a comprehensive medical program, but they may need to update their drug-testing policies to account for laws that protect recreational use as well.

Compliance is particularly complicated for multistate employers because marijuana laws are not the same in every state. "In some states, it is acceptable for employers to take adverse employment actions due to recreational marijuana use, but in other states, it is not," explained Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

Currently, at least 16 states and Washington, D.C., have recreational marijuana laws. Many other states are considering such laws and likely will enact them in the near future, Russo said, noting that Congress is also considering legislation to legalize marijuana at the federal level. "The clear trend is that eventually marijuana is going to become a legal substance throughout the country."

Here's what employers need to know about the changing landscape of recreational marijuana laws and what it means for their policies.

Workplace Protections Vary

Many of the earlier states to legalize adult cannabis use, such as 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.

"Because cannabis remains illegal under federal law, cannabis use outside of work is not a protected activity under the statute," said Rachel Gillette, an attorney with Greenspoon Marder in Denver. Lawmakers have considered amending the statute to include an employee's legal, off-the-job cannabis use, but that effort has yet to gain enough momentum in Colorado's state legislature, she noted.

Similarly, California law doesn't protect employees who consume cannabis, even outside of work hours, though legislation has been introduced to limit the use of employment-related drug screens.

Lawmakers in New Jersey and New York, however, recently approved recreational marijuana laws that include employment protections. New York's law prohibits employment discrimination against people who lawfully use recreational marijuana off duty, while New Jersey's law protects anyone who uses marijuana and prohibits adverse employment actions based "solely" on a positive marijuana test result, Russo explained.

Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J., said given the inclusion of the word "solely" in New Jersey's law, an employer could fire an employee if there is a reason beyond the positive test result to support the decision, such as a positive drug test in combination with observed behaviors that indicate intoxication.

She noted that New Jersey's law is unique from other state laws because it imposes strenuous requirements on employers that screen for cannabis use. Specifically, she said, New Jersey employers may drug test applicants and employees for cannabis only in certain circumstances, and the drug test must include a physical evaluation of the employee conducted by a certified workplace impairment recognition expert.

Multistate employers should note that Nevada doesn't allow employers to take adverse action against job applicants who test positive for marijuana, unless the job is safety-sensitive. Additionally, Philadelphia recently enacted a law prohibiting most employers in the city from testing new hires for marijuana use starting Jan. 1, 2022. The city's law also has exceptions for safety-sensitive positions.

Notably, New Jersey's law doesn't include an exception for safety-sensitive positions, but all the state and local laws that limit cannabis screening have carveouts for federal contractors and roles that are subject to the U.S. Department of Transportation's drug-testing requirements.

Employers need to have a full understanding of what conduct is and is not protected under the applicable law and adjust their policies, said Sara Jodka, an attorney with Dickinson Wright in Columbus, Ohio. Employers will have to work within the confines of the law and their policies to ensure workplace safety while also complying with recreational cannabis laws.

Testing Challenges

Even in jurisdictions where off-duty recreational cannabis use is protected, employers can prohibit workers from being under the influence on the job. The issue, however, is defining what "under the influence" means and how it is determined, Jodka said. Many employers use drug tests to screen for cannabis without a good grasp on the type of test they are using and what the results actually mean, she noted.

"It is critical for employers to work with their drug-test provider to discuss what type of testing is to be administered and what type of results should be provided," she said. Cannabis consumption can be tested through hair, saliva, urine and blood samples. Depending on the worker's metabolism and rate of use, hair testing can detect use all the way back to a year. Saliva, in comparison, only detects use going back a couple of days. "As such, saliva is the most common test, because the test can demonstrate that the use was close in time to the alleged incident where the employee showed up to work allegedly under the influence," Jodka observed.

Until there is a widely accepted and proven test to detect real-time cannabis intoxication, Mastroianni said, employers will continue to face practical challenges in maintaining substance-free workplaces due to the difficulty in establishing that an employee was under the influence during working hours or while on company property.

Practical Considerations

Employers in jurisdictions that protect off-duty use may decide to stop testing job applicants and employees for cannabis use altogether, Mastroianni noted. "Employers that decide to continue drug testing employees for cannabis must consult with counsel to ensure the drug-testing program is fully compliant with the applicable laws."

She recommended that employers train managers to identify when an employee is under the influence of cannabis, since employees in some jurisdictions cannot be disciplined or fired solely due to a positive drug test.

Gillette also said employers should consider amending policies to address on-the-job impairment, rather than the mere presence of cannabis in an employee's system. "Ask yourself if you care that your cashier goes to a concert and smokes a joint over the weekend. Is it worth terminating a good employee because a drug test shows that cannabis was consumed days or weeks prior to the results of a drug test?"