August 23, 2023

Right to Reef? The Growing Number of State and Local Laws Addressing Off-Duty Marijuana Use by Employees

8 min

Few areas of the law have evolved more quickly than the quagmire of federal, state, and local laws governing employee use of marijuana. Although cannabis remains a Schedule I drug under the federal Controlled Substances Act, more than two-thirds of all states have legalized medical marijuana. More than 20 states permit adults who are 21 or older to purchase and consume cannabis products recreationally. The latest trend? A growing number of state and local jurisdictions that have passed laws to protect employees who use marijuana and cannabis products outside of workplace hours and off workplace premises. Employers across the country are now faced with the challenging task of navigating these laws, which vary widely by jurisdiction, to bring their employment policies and practices into compliance and to avoid legal liability.

Overview of the Various Laws Governing Employee Off-Duty Cannabis Use

Employers have historically had the right to enforce policies that prohibit off-duty marijuana use when it might reasonably affect the workplace. That is still the case in a majority of states. In these jurisdictions, employers generally have a right to require job candidates and employees to take drug tests that screen for marijuana use, and to take adverse employment actions, including disqualification from hiring or termination of employment, if the job candidate or employee tests positive for tetrahydrocannabinol (THC) or cannabis metabolites.

Some jurisdictions, like Maryland, have decriminalized recreational use of marijuana but have not passed laws expressly addressing whether an employer may prohibit employees from using marijuana outside the workplace. Other jurisdictions have enacted laws that generally prohibit employers from discriminating against employees for lawful, off-duty conduct—without specific reference to cannabis. Whether such laws apply to protect employee off-duty recreational or medical marijuana use is a question often left to state courts, and may depend on the circumstances and the wording of the statute. Employers in such jurisdictions would be wise to exercise caution in crafting their substance abuse policies and taking personnel actions penalizing employees for off-duty marijuana use.

In recent years, a growing number of jurisdictions have enacted legislation that, subject to certain exceptions, expressly renders workplace policies prohibiting employee off-site, off-duty cannabis use unenforceable under state and local law. These jurisdictions include California, New York, New Jersey, Washington, Connecticut, Illinois, Montana, Rhode Island, Maine, and Washington, DC. Under these laws, an employer may be subject to liability, including administrative penalties and civil lawsuits, for taking an adverse employment action against an employee or job candidate for cannabis use outside of work hours and off employer premises.

What Types of Workplace Policies and Practices Are Permitted Under Off-Duty Cannabis Laws?

The requirements under these laws are not identical. As a threshold matter, being "high" at work is not protected. None of these laws permit an employee to use cannabis products during work hours or to show up to work impaired. Employers may generally enforce drug-free workplace policies and discipline employees who use cannabis products or who are under the influence of cannabis during working hours or on company premises.[1] When an employer may conclude that an employee is under the influence, however, is another matter entirely.

Some of these laws define what constitutes cannabis "impairment." For example, under the D.C. Cannabis Employment Protections Amendment Act of 2022 (CEPAA), portions of which went into effect on July 13, 2022,[2] an employee may be considered impaired by the use of cannabis only if the employee "manifests specific articulable symptoms while working, or during the employee's hours of work, that substantially decrease or lessen the employee's performance of the duties or tasks of the employee's job position, or such specific articulable symptoms interfere with an employer's obligation to provide a safe and healthy workplace as required by District or federal occupational safety and health law." Notably, under this definition of impairment, detecting the smell of marijuana smoke on an employee's clothing during work hours would be insufficient to determine that the employee was impaired at work. New York's Marijuana Regulation and Taxation Act includes a similar definition of "impairment," but the New York State Department of Labor has further clarified in recent guidance that, while there is "no dispositive and complete list of symptoms of impairment," the symptoms of impairment must be "objectively observable." California's Assembly Bill 2188, which goes into effect on January 1, 2024, simply makes clear that employees do not have the right to "possess," "be impaired by," or "use" cannabis at work.

The requirements for drug testing also vary. Certain jurisdictions restrict preemployment drug testing for cannabis altogether. For example, subject to certain exceptions, employers in New York City are expressly prohibited from requiring job applicants to undergo testing for marijuana. Employers in Nevada generally may not refuse to hire a prospective employee because the employee tested positive for the "presence of marijuana" on a pre-employment drug screen. Employers in DC may conduct drug tests for marijuana, but may not take an adverse employment action based on the presence of cannabinoid metabolites in the individual's bodily fluids unless there are "additional factors" indicating impairment on the job (as defined above). Likewise, employers in California are permitted to test for marijuana, but may rely only on "scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites."[3] Under Washington state's Senate Bill 5123, which goes into effect on January 1, 2024, employers may continue to use drug tests that detect a range of controlled substances, including cannabis, as long as the findings related to past cannabis use are not provided to the employer.

While all of the laws prohibiting off-duty use of marijuana include exemptions, and typically some form of exemption for safety-related jobs, the type and number of exemptions vary widely. For example, DC's CEPPA exempts jobs involving security services, frequent operation of a motor vehicle or heavy machinery, regular work on an active construction site, supervision of or care for children, and the administration of medications or certain medical procedures, among other exemptions. California's AB 2188 exempts building and construction trades, federal contracts, federal recipients, and federal licensees required to maintain drug-free workplaces. Washington's S.B. 5123 exempts positions that work with public safety agencies, such as law enforcement agencies, fire departments, and first responders; corrections officers; the airline or aerospace industries; and other "safety sensitive" positions. Each of these laws also generally includes an exception for any occupations that are required by federal or state laws to be tested for controlled substances (e.g., commercial pilots and truckers, positions that require a federal security clearance or background investigation, etc.).

Considerations Under Medical Marijuana Laws

Employers navigating the patchwork of laws governing off-duty marijuana use must also consider any applicable state or local medical marijuana laws. Under these laws, employers may generally treat employee use of medicinal marijuana in much the same way as employee use of other prescription drugs. Employers may not discriminate against an employee who uses medical marijuana outside of work hours, pursuant to a valid prescription, but may enforce a workplace policy that prohibits employees from reporting to work in a state of impairment. Some states, like Massachusetts, expressly acknowledge that in certain circumstances an employee may be entitled to use medicinal marijuana as a reasonable accommodation to treat a covered disability. Similarly, in Nevada and Vermont, employers have an obligation under state disability discrimination laws to engage in an interactive process to attempt to accommodate the reasonable needs of employees who use medical marijuana.

Intersection with Federal Law

Further complicating the analysis is the fact that marijuana use remains illegal under federal law and is still subject to the federal Drug-Free Workplace Act. Federal contractors, federal grantees, and employers in federally regulated industries must continue to comply with federal regulations and laws governing drug use, drug testing, and drug-free awareness programs, including prohibitions on the use of marijuana. Employers must comply with any such federal requirements even if they directly conflict with state law, regardless of any enumerated exemptions in the state law. However, employers should comply with applicable state law where doing so is possible without directly running afoul of any federal mandates.

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Employers should exercise a high degree of caution and seek the advice of an experienced employment attorney before taking action against an employee for off-duty cannabis use. If your organization has questions about how to navigate applicable off-duty marijuana use laws, or about any laws or issues referenced in this article, please contact the authors of this article or any other attorney in Venable's Labor and Employment Group.

© 2022 Venable LLP. Using, distributing, possessing, and/or selling marijuana is illegal under existing federal law. Compliance with state law does not guarantee compliance with federal law. This informational overview is not intended to provide guidance or assistance in violating federal law.

[1] Employees who work remotely are generally not considered to be working from company premises under these types of laws. While an employer may generally enforce a policy that prohibits a remote employee from using or being under the influence of marijuana during work hours, taking an adverse action against an employee for marijuana use outside of work hours at the employee's residence is likely prohibited.

[2] The law will go into full effect when included in an approved District of Columbia fiscal budget.

[3] California's AB 2188 defines THC as the chemical compound in cannabis that may indicate impairment and cause psychoactive effects, but notes that once THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. Under AB 2188, nonpsychoactive metabolites "do not indicate impairment, only that an individual has consumed cannabis in the last few weeks."