Megan K. Mechak
Tue, 12/06/2022
Although cannabis is a Schedule I drug under federal law, multiple states have legalized it, either for medical or recreational use, or both. With the mid-term elections in November 2022, cannabis use for medical and recreational purposes has been decriminalized or legalized in twenty-one states and the District of Columbia. Additionally, sixteen states have decriminalized or legalized its use for medical reasons only. The remaining states have either not legalized or decriminalized any cannabis use or only permit use of low-THC products.
Many states are considering the employment implications of the decriminalization or legalization of cannabis use, and a handful of states have enacted state laws that explicitly protect cannabis users from employment discrimination:
- Connecticut: state law prohibits discriminating against an employee who “does or does not smoke, vape, aerosolize, or otherwise use cannabis products,” unless the employer has implemented a workplace policy prohibiting possession, use, or other possession by employees. Conn. Gen’l Stat. Ann. §§ 21a-422p(b)(1)-(2)(A).
- Montana: state law prohibits discrimination because an employee “legally uses a lawful product,” which includes cannabis. Mont. Code Ann. §§ 39-2-313(1)-(2).
- New Jersey: state law prohibits discrimination because “[a] person does or does not smoke, vape, aerosolize or otherwise use cannabis items. N.J.S.A. § 24:6I-52(a)(1).
- New York: state law provides similar protections against discrimination based on an employee’s legal use of cannabis. N.Y. Lab. Law §§ 201-d(2)(b)-(c).
- Rhode Island: prohibits (subject to narrow exceptions) discrimination “solely for an employee’s private, lawful use of cannabis … as long as the employee has not and is not working under the influence of cannabis.” R.I. Gen’l Laws § 21-28.11-29(d).
Each of these states does permit an employer from prohibiting employees from either working under the influence of cannabis or consuming cannabis products during work hours or on the employer’s property.Not all states have been willing to extend protections to lawful cannabis users, because the drug remains illegal under federal law. For example, Nevada has a law making it unlawful to ““[d]ischarge … any employee … because the employee engage[d] in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours” as long as “that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” Nev. Rev. Stat. § 613.333(1). Earlier this year, the Nevada Supreme Court concluded that the law did not protect activities that were lawful under state law, but illegal under federal law. The Colorado Supreme Court issued a similar decision in 2015.
These laws generally carve out employers who are required to impose stringent prohibitions on cannabis use by federal law or employers in safety-sensitive fields. For example, the Omnibus Transportation Employee Testing Act of 1991 requires employers operating in safety-sensitive fields (such as aviation, trucking, railroads, mass transit, pipelines, and others) to maintain “zero-tolerance” drug policies, including mandatory drug testing. Executive Order 12564 prohibits cannabis (and other drug) use by federal employees in sensitive positions, including those involved in law enforcement, national security, the protection of life and property, or public health or safety. The Executive Order likewise requires each workplace to have an anti-drug program, including drug testing.
Jurisdictions across the country are enacting similar protections. On or after January 13, 2023, the Marijuana Employment Protections Amendment Act of 2022 will become effective in Washington, D.C., and prevent employers in non-safety sensitive professions from adversely affecting the employment of a worker because they use cannabis, are a medical cannabis patient, or test positive for cannabis absent impairment.
Employers will be allowed to adopt a “reasonable drug-free workplace or employment policy,” that allows for post-accident or reasonable suspicion testing of employees in safety-sensitive positions, and will be required to notify workers of their rights under the new law (including whether the employee’s role is “safety-sensitive and the employer’s protocols for drug and alcohol testing).
Beginning January 1, 2024, California will extend similar protections to employees. Assembly Bill 2188, which Governor Newsom signed into law in September, amends the California Fair Employment and Housing Act (“FEHA”) to prohibit discrimination against an individual based on an “employer-required drug screening test” that detects cannabis metabolites. Those states that protect against workplace discrimination based on cannabis use extend similar protections, generally requiring physical evaluation to ensure that an employee is impaired in the workplace, rather than permitting employers to rely on the results of drug screenings.
Of course, employees who work for companies who legally sell cannabis products are entitled to the same legal protections (including being paid minimum wage and overtime) as other workers. MSE protects the rights of workers in all industries. For more information, visit https://www.mselaborlaw.com/practice-areas.
