Top Employer Questions About Weed and the Workplace

Navigating the maze of state marijuana laws is complicated for employers that want to ensure a drug-free workplace. Can employers discipline workers who consume cannabis when they're off duty? Do medical marijuana patients have to be accommodated? The answers depend on the job and the location.

Although all marijuana use is still illegal under federal law, at least 33 states allow medical use, and 11 of those states and Washington, D.C., also allow recreational use.

[Update: Voters in five states approved marijuana laws on Election Day (Nov. 3). In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters approved recreational use. Mississippi voters decided to legalize medical marijuana in the state, and South Dakota voters agreed to legalize both recreational and medical use.]

 "In light of the array of laws and the growing acceptance of marijuana use by the workforce, many employers are removing marijuana from pre-employment and random drug tests and accommodating medical marijuana use outside of work," said Jill Vorobiev, an attorney with Reed Smith in Chicago.

Here are some answers to common employer questions about workplace marijuana policies.  

Now that marijuana is legal in many states, can employers still ban it from the workplace? 

"Yes, absent a few outliers, most states still allow employers to ban marijuana use, both recreational and medicinal, from the workforce," said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich.

Sam Coffman, an attorney with Dickinson Wright in Phoenix, noted that even an employee who has a valid medical marijuana card can be fired for being impaired at work. "If an employee is showing signs of impairment in the workplace, the employer can take disciplinary action," he explained.

But there is no consensus on what being "under the influence" means. "Most testing only shows if metabolites are in the worker's system," explained David Barron, an attorney with Cozen O'Connor in Houston.

So an employee could lawfully consume cannabis products on Saturday and test positive on Monday, even though the worker may no longer be under the influence.

Employers have to rely on observable signs of intoxication, such as slurred speech and unusual behavior, Barron said. But he cautioned that such behaviors could have other causes.

Employers don't want to suggest that someone has a drug or alcohol problem, he said, so many employers rely on a positive drug test plus some observable evidence that the worker is under the influence.

Employers should train supervisors on the signs of being under the influence and how to properly document their observations, Barron said.

What are the limits on screening for marijuana use?

In many circumstances, employers can still test job applicants and employees for marijuana use and take adverse employment action based on a positive result, Welch said.

Employers should note, however, that drug-testing laws vary widely by state—and so do protections for employees who use marijuana off duty. Local laws may also affect drug- testing policies.

For example, earlier this year, New York City banned employers from conducting pre-employment marijuana tests, and Nevada barred employers from considering a pre-employment marijuana test result. However, both laws have exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

In some states, employers are generally prohibited from discriminating against workers for their off-duty use of lawful products. Some state statutes specifically provide workplace protections for cannabis use—particularly for registered medical marijuana patients—and other state statutes make clear that employers do not have to accommodate any marijuana use, even when it's off duty. 

In New York, for example, certified medical marijuana users are considered individuals with disabilities and have some employment protections under the state's human rights law. In Ohio, however, employers can fire or refuse to hire medical marijuana users. Medical marijuana patients are not covered by the Americans with Disabilities Act, since cannabis use is still illegal at the federal level. "This is very much a state-by-state issue," Barron said. In states where medical marijuana use is permitted, he recommends that employers think about the types of jobs for which they can accommodate off-duty use. For example, they may want to accommodate an office worker but not a driver.

A reasonable accommodation may not be available for a given job, but employers should make a good-faith effort to find one, such as granting time off or altering shifts while the worker is medicated.

"Treat marijuana like any other prescription drug that would impair employees and wouldn't allow them to drive or operate heavy equipment," Barron suggested.

Can employers have a zero-tolerance policy for safety-sensitive positions?

Many employers have concerns about workplace safety—and they can and should take action if someone is impaired in the workforce, Vorobiev said.

Some employers that no longer conduct pre-employment or random drug screens are still testing for marijuana if they have a reasonable suspicion that a worker is impaired, she noted. Other employers are not removing marijuana from their drug-testing panels or significantly changing their policies—particularly in states where courts have held that employers are not required to accommodate medical marijuana use.

Note that in some industries, employees in safety-sensitive jobs and federal contractors must comply with federal drug-testing rules that dictate the steps employers must take and are generally excluded from state limits on drug testing.

Some states, such as Arizona, specifically provide an exemption for safety-sensitive positions to their medical marijuana statute's anti-discrimination provisions. "This includes positions that the employer reasonably designates as being a position that could affect the safety or health of the employee or others," Coffman explained. Arizona's statute provides a number of examples of safety-sensitive jobs, such as those involving the operation of heavy equipment or handling food and medicine.

"But these are only examples," Coffman said. "The employer is free to designate positions as safety-sensitive so long as it is reasonable and done in good faith."

An employee said a positive test result was due to the use of CBD oil—not marijuana. Can an employer still take disciplinary action? 

"Most likely, yes," Welch said. Many states that haven't legalized medical marijuana allow limited use of cannabis oils if they contain a low level of THC and a high level of cannabidiol (CBD), a nonpsychoactive component that is said to have medicinal value.

People sometimes use CBD oil for disability-related reasons, such as reducing pain or anxiety.

CBD oil should not trigger a positive test, Welch said. She recommends using a reputable drug-testing facility with a medical review officer who can screen for this and other reasons an employee may challenge the test results.