Legalized Marijuana and Employment

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It is not always clear whether an employer may take adverse employment actions against an employee based solely on a positive test for marijuana. As a result, several courts have issued decisions on this issue. These decisions will answer this question for employers in some legalized marijuana states and may be helpful for employers in others. 

This Compliance Overview provides a general summary of federal and state marijuana laws and the court decisions that provide guidance for employers in this area.

State marijuana laws do NOT affect employer's rights to: 

  • Prohibit employees from using marijuana at work or during work hours
  • Prohibit employees from being under the influence of marijuana at work or during work hours
  • Require employees or applicants to undergo drug testing

State marijuana laws and other laws MAY: 

  • Require employers to make reasonable accommodations for an employees’ off-duty marijuana use
  • Prohibit employers from discriminating against employees based on off-duty marijuana use
  • Impose employer requirements for workplace drug testing policies

Overview

Under virtually every state law that legalizes marijuana use, employers have an explicit right to prohibit their employees from using or being under the influence of marijuana at work or during work hours. In addition, none of these laws place any restrictions on an employer’s right to administer drug tests.

However, the New York City (NYC) Council has enacted a local law that will prohibit employers in NYC from testing job applicants (other than applicants for certain safety-sensitive positions) for marijuana as a condition of employment. This local law goes into effect on May 10, 2020.

In addition, Nevada has enacted changes to its Lawful Product Use Law that will prohibit employers from failing or refusing to hire a job applicant solely because he or she tests positive for marijuana. This prohibition, which is subject to certain safety-based exceptions, becomes effective on Jan. 1, 2020.  

Employment disputes can arise when a state’s marijuana law does not address whether employers may prohibit employees or applicants from engaging in off-duty marijuana use. The inconsistency between federal law and state marijuana laws also leads to questions regarding employers’ obligations.

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