In the ever-evolving landscape of cannabis legalization, the intersection of cannabis use and employment laws has become a focal point of legal deliberation and social discourse. With changing perceptions and attitudes toward cannabis consumption, legislative measures have undergone significant transformations to safeguard the rights of individuals who use cannabis responsibly. This article aims to explore the complexities surrounding cannabis in the workplace and shed light on how the law is continually adapting to protect users' rights from discrimination.

The Changing Landscape of Cannabis Use

Over the past few decades, the societal outlook toward cannabis has experienced a notable shift. What was once viewed as a taboo substance is now increasingly accepted for medicinal and recreational use in various jurisdictions. This progressive shift has prompted lawmakers to reassess and recalibrate employment laws to ensure fair treatment for cannabis users, considering their personal choices and the changing legal landscape.

Yet, navigating the intersection between cannabis use and employment remains complex. Employers grapple with balancing their need to maintain a productive and safe work environment with respecting their employees' personal rights and choices. Simultaneously, individuals who legally use cannabis for medical purposes face the daunting challenge of avoiding discrimination and misconceptions in the workplace.

Legal Status of Cannabis Use Across Jurisdictions

Crucially, the legal status of cannabis varies significantly across jurisdictions, further adding to the intricacy. While some regions have embraced comprehensive decriminalization and legalization policies, others still retain stringent regulations and prohibitions. As a result, employment laws are adapting to this patchwork of cannabis legislation, leading to an intricate web of federal, state, and local regulations that businesses and individuals alike must navigate.

In response to the rapidly changing legal landscape, lawmakers have been proactive in establishing new statutes and amending existing ones to protect the rights of cannabis users from discrimination in the workplace. These laws aim to strike a delicate balance between respecting personal freedoms and upholding employers' rights to enforce workplace policies that ensure safety and productivity.

Recent Changes to Laws

The following are examples of states which have recently enacted new legislation regarding cannabis use within their jurisdictions:

Maryland: Cannabis was legalized for personal use, cultivation, and retail sale. The process to expunge criminal convictions when possession of less than ten grams of cannabis was the only charge was instituted.

Missouri: Cannabis was legalized for personal use for persons at least 21. The license to cultivate, manufacture, and dispense cannabis was established. The law allows persons with certain marijuana-related non-violent offenses to petition for release from incarceration, parole, and probation and have their records expunged.

Rhode Island: The law allows the people 21 or olde to legally use, sell or possess up to one ounce of cannabis. Expungement of previous possession convictions is now permitted.

Connecticut: The law permits the cultivation of cannabis at home for personal use.

Virginia and Nevada: Improved their respective programs for the medicinal use of cannabis.

New Hampshire: Out-of-state persons can now access medical dispensaries licensed with the state.

California and Louisiana: Both states have implemented laws to increase efforts to expunge prior cannabis convictions.

Maine: The law limited the ability of those on probation to be drug tested for cannabis use.

Delaware and Minnesota: Legalized adult personal cannabis use.

Kentucky: Legalized medical cannabis use

Anti-Discrimination Drug Policies

Many states have implemented laws prohibiting employers from discriminating against job applicants and employees who use medicinal cannabis or who use cannabis recreationally. The following states have instituted laws that bar employment discrimination based on medicinal cannabis use:

• Arizona
• Arkansas
• California
• Connecticut
• Delaware
• District of Columbia
• Illinois
• Maine
• Maryland
• Minnesota
• Missouri
• Montana
• Nevada
• New Jersey
• New Mexico
• New York
• Oklahoma
• Pennsylvania
• Rhode Island
• South Dakota
• Virginia
• Washington
• West Virginia

The following states have instituted laws that bar employment discrimination based on recreational cannabis use:

• Washington
• Nevada
• New York
• New Jersey
• Connecticut
• Montana
• Rhode Island

Purpose of Cannabis Anti-Discrimination Statutes

This law aims to protect job applicants and employees from being disqualified, punished, or terminated from a job due to cannabis use. Generally, the statutes protecting medicinal use include express language that “an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment otherwise penalize a person based upon . . . [t]he person's status as a [medicinal cannabis] cardholder.”

There are a few caveats that are almost universal in these anti-discrimination statutes.

Monetary Benefit

First, many laws include language such as, “[u]nless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations . . . .” This type of provision allows an employer to terminate or not hire an individual for their cannabis use with the sole purpose of protecting the business's financial or license-related benefits under federal law or regulation.

Protected Under Policy to Perform Duties

Another frequent caveat is that employers are protected from discrimination claims if they terminate an employee under a “policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.” This language means that an employer is within their right to terminate an employee, under an applicable company policy, if the employee is under the influence of cannabis while performing their job. Employees are protected from employer punishment for their use of cannabis as long as they are not under the influence of cannabis while on the job.

Safety-sensitive duties

A job applicant or employee's use of cannabis is likely not protected under the anti-discrimination laws if their type of work involves “safety-sensitive job duties.” In general safety-sensitive jobs would include things like the handling of hazardous materials, operating heavy machinery, patient care, or anything that would require the use of a firearm. These provisions appear to be added to the anti-discrimination statutes for public safety and public policy concerns.

Outside of those instances, employers subject to a cannabis anti-discrimination statute cannot reject a job applicant or terminate an employee for their use of cannabis. Please note that different jurisdictions differ on whether these anti-discrimination statutes apply only to medicinal cannabis use, recreational cannabis use, or both. Please research your applicable jurisdiction to determine which statutes apply, if any.

Can An Employee be Fired for Cannabis Use?

In a jurisdiction that does not have an employee anti-discrimination law that covers cannabis use, the answer is yes, that employee can be fired for their use of cannabis. If an employee works in a jurisdiction that has an employee anti-discrimination law that covers cannabis use, the employee cannot be terminated unless one of the caveats described above applies. Typically, if the employee's cannabis use puts the employer's federally regulated benefits at risk, the employee is under the influence on the job, or the job duties are safety-sensitive, termination can be permitted.

If a statute is in place within the employee's jurisdiction to protect the use of cannabis, the employee cannot be terminated for that use unless a statutory exception applies.

Can An Employee Lose a Job Offer for Testing Positive for Cannabis?

Generally, if an anti-discrimination statute protects a job applicant's use of cannabis, a failed drug test will not be enough to lose a job offer. Some state statutes and court opinions prevent an employer from discriminating against a job applicant based on the detected use of cannabis from a pre-employment drug test.

The Nevada Supreme Court recently held that a Nevada law protecting job applicants' cannabis use from discrimination bars an employer from refusing to hire an employee solely based on a positive drug test. In states like New Jersey and Minnesota, both of which have legalized the medicinal use of cannabis, their laws allow a job applicant to provide a “medical explanation” for a positive drug test.

The answer to this question is jurisdiction-specific, but for states with anti-discrimination policies covering cannabis use, a job applicant is unlikely to lose a job offer because of a failed drug test.

Is Federal Law Likely to Change?

Cannabis is a Schedule I controlled substance under the federal Controlled Substances Act. There are consistent efforts from members of Congress, advocacy groups, and individuals to change federal laws pertaining to cannabis use across the country. In October 2022, President Joe Biden released a statement about the status of cannabis within the country and called for change. However, at this point, most progress in changing cannabis laws is focused within the states.

Conclusion

The landscape of cannabis and employment laws is constantly evolving as more states institute regulations to protect individuals from discrimination based on cannabis use. The primary purpose of these anti-discrimination statutes is to shield job applicants and employees from being disqualified or terminated solely due to their cannabis use, be it for medicinal or recreational purposes.

However, several caveats allow employers to terminate or refuse employment if federal benefits are at risk or the employee's job involves safety-sensitive duties. As the cannabis industry continues to flourish and societal attitudes evolve, comprehensive and fair employment laws will remain crucial to ensuring a just and equitable workforce.

Questions?

Because jurisdictions vary in the scope and applicability of these laws, individuals must research and seek legal advice in their specific region to understand the protections available.

If you have questions about cannabis law and your employment or your employees, contact our experienced cannabis lawyers today for a free consultation.