May 22, 2023

Making Sense of Marijuana in the Workplace

Marijuana is a hot topic these days, but for employers, it’s a legal minefield. There’s a lot of confusion about how to classify marijuana and how to treat it at work.

If an employee uses medical marijuana, does that fall under OSHA healthcare regulations? What about recreational marijuana?

We're covering the basics of marijuana in the workplace so that you know where to start.

It’s Legal…Kind Of

First, let’s address the big question: is marijuana legal?

The short answer: yes.

The long answer: yes, but it’s also illegal.

As of this year, 33 states and the District of Columbia have legalized medical marijuana, and 11 states plus DC have legalized recreational marijuana. Other states have decriminalized marijuana (which is not the same thing as legalizing).

However, marijuana remains illegal at the federal level and is classified as a Schedule 1 drug by the DEA, which means it has no recognized medicinal uses and a high potential for abuse. Doctors and pharmacies cannot distribute Schedule 1 drugs and possession and distribution can be prosecuted as a crime in federal court.

This is where marijuana gets complicated for employers.

Current Case Law

Current case law is highly dependent on the status of marijuana in your state and the stance adopted by state and local law enforcement. As of last year, the Department of Justice told local and state prosecutors to comply with state or federal law based on their discretion.

Whether or not you can ban marijuana depends on your worksite. For employers governed by the Department of Transportation (DOT), the answer is yes. On the job or off, marijuana use is prohibited for employees governed by the DOT.

Federal contractors must comply with federal law or risk losing their federal contracts. Similarly, employees in sensitive positions, either with the federal government or government contractors, must not be impaired by any substance, whether it is legally prescribed or not.

For everyone else, the answer is unclear. Even in some states that have legalized marijuana, it is still possible for employers to ban its use. The best thing to do is to get legal advice based on your state and local regulations.

The law is equally unclear with regard to disciplining employees for marijuana use. Some states ask employers to find accommodations for the employee, while others allow employers to discipline employees for marijuana use.

Medical Marijuana

If you have employees who use medical marijuana, the best place to start is by checking their job requirements and your particular company.

Even if your state has legalized marijuana and the employee is part of a recognized medical marijuana program, any employer that works with the government at any length should take pains to avoid marijuana in any form.

If the employee tests positive for marijuana and you don’t work with the government or DOT governance, check your state laws on accommodation. Generally, you do not have to allow an employee to work under the influence, but you may be required to offer accommodations to account for the nature of the job, safety issues attached to the job, and sensitivities in the job.

Recreational Marijuana

Fortunately for all involved, the guidelines around recreational marijuana are a bit clearer. At least, in some locations.

In Alaska, Colorado, and the District of Columbia, there are express protections in place stating that employers do not have to accommodate or permit the use, sale, or possession of marijuana in the workplace. Oregon and Washington state don’t provide guidance on this front.

The best approach to take is to establish a clear workplace policy on marijuana and other controlled substances at work. Employees must understand that employers can legally terminate them for marijuana use under federal law.