Marijuana and the Workplace

  1. I am a federal employee in a state where marijuana is legal. Can I be fired for testing positive for marijuana on a drug test?
  2. Can the federal government interfere with marijuana state laws?
  3. Can my employer choose to accommodate a medical marijuana user, even if they are not required to accommodate under state law?
  4. Can my employer punish me for my off-duty use of marijuana (recreational or medicinal) that is allowed under state law?
  5. If I have a valid medical marijuana card, and I need to use the marijuana while on the job to relieve pain, can I get in trouble with my employer?
  6. If the state I live in has legalized marijuana, can I still be drug tested and fired for using it?
  7. State Marijuana laws

1. I am a federal employee in a state where marijuana is legal. Can I be fired If I test positive for marijuana on a drug test?

Yes, marijuana currently remains classified as a Schedule I substance under the Controlled Substances Act. This means that the growing, distribution, use, manufacture, and possession of marijuana remain illegal under federal law. Executive Order 12564, Drug-Free Federal workplace, mandates that Federal employees are required to refrain from the use of illegal drugs. Therefore, any marijuana use or handling is illegal for federal employees. 

2. Can the federal government interfere with marijuana state laws?

Under President Obama, the Justice Department issued the “Cole Memo” in 2013. The Cole Memo indicated that the federal government would focus its efforts on preventing distribution to minors, preventing criminal enterprises like drug cartels and gangs, preventing the movement of marijuana into states that had not legalized its use, and preventing its use on federal property. Then, Congress enacted a law prohibiting the Justice Department from spending funds to prosecute marijuana users or providers who are acting lawfully according to state law.

However, In January 2018, U.S. Attorney General Jeff Sessions stated that “marijuana is a dangerous drug and that marijuana activity is a serious crime.” He then instructed federal prosecutors to “follow the well-established principles that govern all federal prosecutions” to decide which marijuana activities to prosecute. It remains unclear what impact this will in states where marijuana use is permitted. 

3.Can my employer choose to accommodate a medical marijuana user, even if they are not required to under state law?

Yes, an employer may choose to accommodate a medical marijuana user however the employer chooses to do so, so long as the employer is not violating any laws.

To find out how these marijuana laws affect the workplace of a particular state in regarding workplace accommodations, scroll down to the information for your state.

4. Can my employer punish me for my off-duty use of marijuana (recreational or medicinal) that is allowed under state law?

Potentially, employee’s working in different states must look to the different laws, regulations, and court interpretations. Marijuana legalization is a rapidly evolving area that is highly dependent on a particular statute’s language and court interpretations – as well as the enforcement position of the federal government.

To find out whether your employer can punish you for your off-duty use of marijuana that is permitted under state law, scroll down to the specific information about your state.

5. If I have a valid medical marijuana card, and I need to use the marijuana while on the job to relieve pain, can I get in trouble with my employer?

Yes, no state law forces employers to tolerate on-the-job use.

6. If the state I live in has legalized marijuana, can I still be drug tested and fired for using it? 

Employee’s working in different states must look to the different laws, regulations, and court interpretations. Marijuana legalization is a rapidly evolving area that is highly dependent on a particular statute’s language and court interpretations – as well as the enforcement position of the federal government.

As of right now, 29 states and the District of Columbia have enacted laws permitting the use of medical marijuana. Nine states have also legalized the recreational use of marijuana. To find out how these marijuana laws affect the workplace of a particular state in regards workplace issues such as drug-testing and accommodations, scroll down to the information for your state.

Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Hawaii
Illinois
Maine
Maryland
Massachusetts
Michigan
Minnesota
Montana
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Dakota
Ohio
Oregon
Pennsylvania
Rhode Island
Vermont
Washington
West Virginia

Alaska:

Under Alaska law, there is no requirement for an employer to accommodate any use of medical marijuana or recreational marijuana. Employers can enforce any policies restricting the use of marijuana by employees including drug testing.

Arizona:

Under Arizona law, unless an employer would lose monetary or licensing related benefits under federal law or regulations, no employer may discriminate against an employee or otherwise penalize a person based upon a person’s status as a cardholder or a registered qualifying medical marijuana patient’s positive drug test for marijuana. However, an employer may discipline an employee if the employee used, possessed, or was impaired by marijuana on the premises of the place of the employer or during hours of employment.

Arkansas:

Under Arkansas law, an employer may not discriminate against an applicant or employee based upon the applicants or employee’s past or present status as a qualifying medical marijuana patient. However, an employer is allowed to establish and implement substance abuse or a drug-free policy or drug testing program that complies with state or federal law. The employer is allowed to take action regarding an applicant or employee under the policy. An employer also may discipline an employee who the employer in good faith believes possessed, smoked, or ingested or otherwise engaged in the use of marijuana while on the premises of the place of employment or during the house of employment. However, a positive test result for marijuana cannot provide the sole basis for the employer’s good faith belief or act as the reason to exclude the qualifying patient from being employed.

California:

Under California law, employers are not required to accommodate any medical use of marijuana on the property or premises of any place of employment or during the hours of employment. Similarly, the law allows employers to maintain a drug-free workplace and does not require an employer to accommodate the outside use of marijuana by employees and applicants. Employers are allowed to drug-test applicants for marijuana so long as the employer tests all applicants for the position and does not single out a specific applicant based on race or disability.

Colorado:

Under Colorado law, an employer is not required to permit or accommodate the use, consumption, or possession of marijuana in the workplace. The law also allows employers to have policies restricting the use of marijuana by employees, which includes the employer’s ability to drug test employees and applicants for marijuana use and discipline them.

Connecticut:

Under Connecticut law, no employer may refuse to hire a person or may fire, penalize or threaten an employee solely based on the applicant or employee’s status as a qualifying medical marijuana patient or for testing positive for marijuana on a drug test. However, the law does not restrict an employer’s ability to prohibit the use of marijuana during work hours or restrict the employer’s ability to discipline an employee for being under the influence during work hours.

Delaware:

Under Delaware law, an employer is not required to allow an employee to work while under the influence of marijuana. Unless failure to do so would cause the employer to lose monetary or licensing-related benefits under federal law, an employer may not discriminate against a person who tests positive for marijuana  in hiring, termination or any term or condition of employment or otherwise penalize a person, based on a person’s status as a cardholder, or a patient’s positive drug test for marijuana, unless the patient used the marijuana or was impaired by marijuana on the premises of the place of employment or during the hours of employment.  However, nothing in the law explicitly prevents employers from continuing to impose existing drug-free workplace policies as they apply to marijuana, nor does it prevent employers from implementing a drug test program in the interest of maintaining employee performance, safety, and productivity,

District of Columbia:

Under D.C. law, employers hiring in D.C. may not test applicants for marijuana usage until after the applicant receives a conditional offer of employment for the position. However, once a conditional offer of employment is made, the applicant can be tested for marijuana, and denied employment if the test is positive. The law does not require any employer to permit or accommodate the use, consumption of marijuana in the workplace or at any time during employment.

Florida:

Under Florida law, the law allows employers to continue to establish or enforce a drug-free workplace program or policy, therefore allowing employers to deny applicants employment and discipline employees who test positive for marijuana on a drug test.

Hawaii:

Under Hawaii law, drug testing for marijuana is authorized if the applicant or employee received notice in writing of substances to be tested for and has the opportunity to disclose current prescriptions and non-prescription medications. However, Hawaii law protects and employer’s right to a zero-tolerance policy.

Illinois:

Under Illinois law, no employer may penalize a person solely for his or her status as a registered qualifying patient unless failing to do so would put the employer in violation of federal law or failing to do so would allow employers to lose monetary or licensing-related benefits under federal law. An employer is allowed to adopt reasonable regulations concerning the consumption and storage of qualifying patients related to medical marijuana, enforce policies concerning drug testing, zero tolerance, or a drug-free workplace so long as the policy is applied in a nondiscriminatory manner. If an employer decides to discipline a qualifying medical marijuana patient based on impairment during work hours or being impaired on the premises, the employer must give the employee a reasonable opportunity to contest the basis of the determination.

Maine:

Under Maine law, an employer may not refuse to employ or penalize someone solely for that person’s status as a qualifying medical marijuana patient unless failing to do would violate federal law or cause the employer to lose federal contract or funding. An employer is not required to accommodate the use of marijuana in any workplace or accommodate any employee working while under the influence. However, an employer may not drug test a person 21 years of age or older for marijuana before hiring, and an employer may not or penalize an employee solely for that person’s consumption of marijuana outside of the employer’s premises.

Maryland:  

Under Maryland law, there is currently no effect on existing drug-free workplace policies. In the case of employees who are qualified medical marijuana patients, those employees will still be expected to adhere to company drug test programs and not show up for work while impaired by marijuana use.

Massachusetts:

Under Massachusetts law, an employer is allowed to enact and enforce workplace policies restricting the consumption of marijuana by employees. However, a Massachusetts court rules that employers cannot fire employees using medical marijuana solely for a positive drug test.

Michigan:

Under Michigan law, an employer is not required to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana. Additionally, employees can reasonably be expected to adhere to company rules and regulations including drug testing programs in the interests of maintaining employee safety, performance, and productivity in the workplace.

Minnesota:

Under Minnesota law, unless the failure to do so would violate federal law, or regulations or cause an employer to lose monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or penalize a person, based upon the person’s status as a patient enrolled in the registry program under medical marijuana law or a patient’s positive drug test for marijuana. However, an employer may discipline an employee or discriminate against an applicant who was impaired by medical marijuana on the premises of the place of employment or during the hours of employment. An employee who is required to undergo employer drug testing may present verification of enrollment in the patient registry as part of the employee’s explanation for a positive test result.

Montana:

Under Montana law, employers are not required to provide accommodations for medical marijuana users. Existing workplace policies regarding drug use and drug testing can remain in place, and all employees are expected to adhere to the workplace policies. An employee who tests positive may be required by his employer to undergo treatment as a condition of keeping employment.

Nevada:

Under Nevada law, an employer is not required to allow the medical use of marijuana in the workplace. An employer is not required to modify the job or working conditions of a person who engaged in the medical use of marijuana that is based on reasonable business purposes of the employer. However, the employer must attempt to make reasonable accommodation for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, if the reasonable accommodation would not pose a threat of harm or danger to persons or property or put undue hardship on the employer, or prohibit the employee from fulfilling any and all of his or her job responsibilities. The medical marijuana law does not prohibit law enforcement agencies from adopting policies and procedures that preclude an employee from engaging in the medical use of marijuana. The law does not prohibit employers from maintaining, enacting, and enforcing workplace policies prohibiting actions and conduct related to recreational marijuana.

New Hampshire:

Under New Hampshire law, an employer is allowed to discipline an employee for ingesting marijuana in the workplace or working while under the influence. Additionally, drug-testing by employers is not restricted so long as it is done fairly and does not discriminate against a certain class of people.

New Jersey:

Under New Jersey law, an employer is not required to accommodate the medical use of marijuana in any workplace. An employer may or may not require pre-employment drug testing and random drug testing.

New Mexico:

Under New Mexico law, there is currently nothing that prohibits or regulates drug testing laws for prospective or current employees by their employer. Therefore, employers are allowed to apply for drug testing programs.

New York:

Under New York law, being a certified medical marijuana patent shall deem the person to have a “disability” under the New York Human Rights Law and the New York Civil Rights Law. This prevents an employer from discriminating against employees and applicants who test positive for marijuana on a drug test. However, this does not prevent employers from enforcing a policy prohibiting an employee from performing his or her employment duties while impaired by medical marijuana.

North Dakota:

Under North Dakota law, the law does not prohibit an employer from disciplining an employee for possessing or consuming marijuana in the workplace or for working while under the influence. Additionally, private employers have the option of requiring drug testing for applicants and employees so long as the employer covers the cost of the drug test. Random drug testing is allowed following an employee’s injury or accident, if there is a mandatory policy of testing in place, or there is a reasonable reason to think that the accident or incident was due to drug-caused impairment.

Ohio:

Under Ohio law, an employer is not required to accommodate an employee’s use or possession of medical marijuana. An employer is allowed to refuse to hire, discharge, discipline, or otherwise take adverse employment action against a person concerning hire, tenure, terms, conditions or privileges of employment because of that person’s use, possession, or distribution of medical marijuana. An employer may establish and enforce a drug testing policy, a drug-free workplace policy, or a zero-tolerance drug policy.

Oregon:

Under Oregon law, an employer is not required to accommodate the medical use of marijuana in the workplace. Additionally, an employer still has the option to drug test applicants and employees.

Pennsylvania:

Under Pennsylvania law, a medical marijuana patient may not perform any employment duties at heights or in confined spaces, including mining, while under the influence. A medical marijuana patient may be prohibited by an employer from performing any task which the employer deems life-threating, to either the employee or any of the employees of the employer, while under the influence of medical marijuana. A medical marijuana patient also may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. An employer is not required to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. Additionally, drug testing is not restricted, unless an employee establishes discrimination, defamation, or invasion of privacy.

Rhode Island:

Under Rhode Island law, no employer may refuse to employ or penalize a person solely for his or her status as a cardholder, even if the individual admittedly would not pass the employer’s pre-employment drug test required of all applicants.

Vermont:

Under Vermont law, an employer is not allowed to conduct random drug test except when required by federal law.  However, employers are allowed to drug test applicants after a conditional offer of employment has been made or if there is a reasonable suspicion that the employee was impaired on the premises of the workplace or during work hours.

Washington:

Under Washington law, employers may establish drug-free work policies. Nothing in the law requires accommodation for the medical use of marijuana if an employer has a drug-free workplace.

West Virginia:

Under West Virginia law, the law prohibits employers from discharging, threatening, refusing to hire or otherwise discriminating again an employee regarding an employee’s compensations, terms, or conditions solely because of the employee’s status as a qualified medical marijuana patient. However, employers are not required to make an accommodation for the use of medical marijuana on the property or premises of any place of employment. Additionally, employers are allowed to discipline an employee for being under the influence of medical marijuana in the workplace or for the working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position. An employer is not required to commit any act that would put the employer in violation of federal law. An employer may prohibit a medical marijuana patient from performing any task which the employer deems life-threatening or a public health or safety risk to either the employee or another employee while under the influence of medical marijuana.