Marijuana in the Workplace: The 2022 Guide for Employers and Employees 

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With more US states and cities legalizing marijuana and reducing prohibitions, businesses that wish to keep cannabis out of the workplace face new challenges. In 2022, multiple cannabis regulations were updated in almost all states, and it’s important to keep them in mind when developing a drug policy in the workplace. Moreover, both employers and employees should be aware that medical marijuana laws vary by state. If you are an employer with offices in many states, you must adhere to each state’s medical cannabis rules. If you are an employee that is transferred from one state’s office to another, remember that the new state’s rules should be applied to your medical marijuana status and use.

Laws on Marijuana Use at Work by States

Approximately two-thirds of the US states now have medical marijuana legislation allowing people with serious medical illnesses to consume marijuana with a doctor’s approval. However, just because marijuana is legal in many places does not mean that its use is permitted in the workplace. Employers in most states have the right to terminate, punish, or otherwise penalize an employee who uses marijuana at work or shows up to work under the influence of marijuana, even if they require it to treat a medical condition.

The states are divided when it comes to off-duty medical cannabis use. Approximately 20 states ban employers from discriminating against medical marijuana cardholders or terminating employees who test positive for marijuana while on the job. Moreover, some states additionally require employers to create appropriate accommodations for employees that use medical marijuana to treat a medical condition. For example, employees suffering from glaucoma can be allowed to start work later in the morning to have enough time for treatment. Other states, however, specifically enable employers to terminate employees for using medical marijuana in the workplace. 

In recent years, more states have legalized marijuana for recreational use. However, most of them enable companies to impose zero-tolerance drug policies and dismiss employees for using drugs while on the job. So far, only the state of Maine protects off-duty recreational marijuana usage. To demonstrate how different the regulations are from place to place, you can check the situation regarding cannabis use in the workplace in some of the US states: 

Medical Marijuana Laws in Arizona

Regulations: The Arizona Revised Statutes §§ 36-2801 to 36-2819

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Legal: medical marijuana only

Rules for employers: Employers may not discriminate against medical marijuana users based merely on their status as registered cardholders or for testing positive on a marijuana drug test unless it would result in the employer losing money or license under federal law. According to Arizona’s laws and rules, employers have the right to terminate or otherwise penalize workers who use, possess, or are impaired by medical marijuana on company property or during work hours.

Medical Cannabis Laws in California 

Regulations: California Health & Safety Code §§ 11362.5, 11362.7 to 11362.9;  §§ 11362.1 to 11362.45

Legal: medical and recreational marijuana

Rules for employers: Employers are not obligated to accommodate medical or recreational marijuana usage in the workplace. Employers may terminate employees who test positive for marijuana, even if the usage was off-duty and for a legitimate medical reason with a valid medical marijuana card.

Medical Marijuana Laws in Ohio

Regulations: Ohio Revised Code Ann. §§ 3796.01 to 3796.30

Legal: medical marijuana only

Rules for employers: Employers are not compelled to facilitate an employee’s medicinal marijuana usage or possession. Employers may impose zero-tolerance drug policies, and medical marijuana users may be disciplined, fired, or refused employment. Get to know the current regulations on medical marijuana use in the workplace and how to get a medical marijuana card online in the state of Ohio. 

Medical Marijuana Laws in Utah

Regulations: Utah SB 109 (2022), Utah Code Ann. 26-61a

Legal: medical marijuana only 

Rules for employers: Government employers must treat medical cannabis patients the same way as they would treat employees with valid opioid prescriptions. This means that such staff cannot face discrimination unless their use of medical cannabis impairs their performance or creates harmful circumstances. Private employers, on the other hand, are permitted by state law to undertake drug testing to detect cannabis usage. They are also permitted to use their current anti-cannabis rules for employees who test positive. This is not to imply that they must, but they do have this option.

Get to know more detailed information about legal cannabis use for medical purposes in other states on this State Cannabis Laws page. 

Marijuana Laws and Employment FAQs 

  1. Is There a Conflict Between State and Federal Laws Regarding the Use of Marijuana at Work?

Yes. Workplace norms are established by the Fair Labor Standards Act, as well as other federal laws and agency regulations. Marijuana is forbidden under federal law. As a result, businesses can freely restrict their employees from using cannabis while on duty. Moreover, sometimes, they can even restrict using cannabis outside the workplace. The case of “Coats v. Dish Network” proves this fact: in 2015, an employee, Brandon Coats, claimed unfair dismissal after testing positive for marijuana, and the Colorado Supreme Court found that form of termination was permissible. Conflicting laws also cause issues in some professions. For example, marijuana is considered to be a Schedule I drug under the Controlled Substances Act, so doctors cannot lawfully prescribe it. In some states and cases, they are just allowed to “recommend” it. 

  1. Can an employer discipline an employee for consuming marijuana on the job?

An employer is not prohibited from taking disciplinary action against an employee if the employee is impaired by cannabis while at work, which means the employee manifests specific articulable symptoms of impairment that: 

  • Reduce or diminish his/her performance
  • Violate safety and health regulations in the workplace
  1. Can an employee be fired for having a noticeable odor of cannabis? 

The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.

  1. Must an employee be dismissed for consuming cannabis or being impaired by cannabis on the job?

No, employers are authorized but not compelled to take action in such cases.

  1. What are articulable impairment symptoms?

There is no definite list of impairment symptoms. By “articulable symptoms of impairment” people usually mean objectively visible signs indicating the wrong, reduced, or harmful employee’s execution of the tasks. Employers should be aware that such articulable symptoms may also be an indicator that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if the employer is unaware of the impairment or condition. Before taking any measures, employers should get advice from qualified specialists on applicable local, state, and federal laws prohibiting handicap discrimination. For example, the hazardous and careless operation of heavy machinery may be regarded as an articulable indication of impairment.

  1. Can an employer drug test an employee if federal law permits it?

No, an employer can not test an employee for cannabis just because it is legal or illegal under federal law. (See, for example, USDOL TEIN 15-90, which explains that neither the Drug Free Workplace Act of 1988 nor the regulations enacted under it permit employee drug testing.) However, if federal or state law demands drug testing or makes it an obligatory condition of employment, an employer may drug test an employee.

  1. May employers force employees to promise or agree not to consume cannabis, as a compulsory condition of work?

Employers may not ask employees to relinquish their rights under Section 201-D of the Labor Law to hire or continue employment.

  1. Can businesses forbid employees from using cannabis outside the workplace? 

No, unless the employer has the authority to do so under Labor Law Section 201-D. (4-a).

  1. Can companies forbid employees from using corporate vehicles?

Yes, employers can restrict usage of corporate cars or company property even beyond regular business hours or work shifts.

  1. Can companies forbid employees to possess cannabis at work?

Yes, companies may ban workers from bringing cannabis into their property, which includes leased and rented space, business vehicles, and employee-only areas inside such property.

  1. Can companies limit marijuana use at the “worksite” for remote employees?

The Department of Labor does not regard an employee’s private house utilized for remote work to be a “worksite” under Labor Law Section 201- D. However, if a person that consumes cannabis demonstrates visible articulable signs of impairment during work hours, as indicated above, an employer may take action and implement a general policy barring marijuana usage during working hours.

Takeaway

There is no one-size-fits-all solution to the issue of workplace marijuana policies. This topic is still in its infancy. Right now, the main problem is uncertainty. In order to avoid expensive mistakes, experts recommend getting legal advice, researching state laws, revising procedures, and educating staff. 

Writer: Alice Sava, a result-driven content manager, writer, and translator with 9 years of experience in a variety of writing styles. Committed to producing exceptional content for Internet blogs, journal publications, TV advertising, and social media.

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