Federal and state laws conflict concerning marijuana usage. Marijuana is illegal for all purposes under federal law; however, many states have passed laws that would purport to allow recreational and medicinal use. Employers across the United States are asking how marijuana usage should be handled in the workplace. For example, unlike with alcohol, employers have no means to determine whether a positive drug screen is the result of an employee’s off-the-clock use of marijuana or current intoxication.

State laws generally address marijuana in the workplace in one of three ways:
  • Some expressly prohibit employers from discriminating on the basis of an employee’s use of medical marijuana, provided that the employee acts in accordance with the state law.
  • Some expressly allow employers to maintain drug-free workplace policies, provided that the policies are not discriminatorily applied.
  • Some fail to address the employment relationship in any capacity.
Most employers maintain some form of drug-free workplace policy, which often includes protections against the use of lawfully prescribed drugs that impair an employee’s ability to safely perform the job. The proliferation of state laws with respect to marijuana use has not resulted in employers losing their rights under these policies. For example:
  • Where state law expressly allows employers to maintain drug-free workplace policies, employers may continue to implement them in a nondiscriminatory manner.
  • An employer is not required to permit an employee to use marijuana in the workplace or to work under the influence of marijuana.
  • Where state law is ambiguous or expressly disallows discrimination against employees who use medicinal marijuana, federal laws may still protect an employer’s interest in maintaining a drug-free workplace. In general, federal law favors employers.
    • Marijuana is illegal across the country as a Schedule I drug under the Controlled Substances Act.
    • Regulations, such as those administered by the Department of Transportation that require employers to drug test for marijuana, supersede conflicting state laws.
    • The Americans with Disabilities Act does not require an employer to accommodate an employee’s use of an illegal drug.
As these laws evolve, employers must watch for laws that expressly disallow employers to discriminate on the basis of an employee’s use of medical marijuana and laws that allow employees to seek redress for lawful (by state standards) medical marijuana use.