Employers should become familiar with all applicable laws before implementing or enforcing any drug testing or other workplace policies regarding employee marijuana use. After all, marijuana legalization is an active and rapidly evolving compliance landscape. Because of this, employers should regularly monitor state legislation and government agency resources for any changes that may affect their businesses.
Here are some FAQs regarding legalized marijuana in the scope of employment.
Can employers prohibit marijuana use during rest and meal breaks?
Yes. Virtually all states with legalized marijuana laws allow employers to prohibit marijuana use during working hours, which usually include rest and meal breaks, even if employees leave the worksite during their breaks.
Can employers prohibit marijuana use while employees are on call?
Yes. The time employees are on call is usually considered working hours, during which employers may place restrictions on their employees, even if they are not actually performing any work.
Can employers prohibit employees from possessing marijuana at work?
Yes. Virtually all states with legalized marijuana laws allow employers to prohibit employees from bringing marijuana onto business property.
Can employers prohibit employees who work at home from using marijuana?
This may depend on how each state’s labor or other laws define a workplace. For example, the state of New York’s labor laws do not consider an employee’s home that is being used for remote work to meet the definition of a “worksite,” which means that employers generally cannot prohibit employees from using marijuana at home. However, employers can take adverse actions if their employees exhibit articulable symptoms of impairment during working hours.
Can employers discipline or terminate employees for the use of legalized marijuana products while on the job?
Yes. Virtually all states with legalized marijuana laws allow employers to prohibit and discipline employees for marijuana use at work or during working hours. Even in states where employer testing for marijuana is severely restricted, employers are not prohibited from taking adverse actions against employees who are under the influence of marijuana at work.
What kind of evidence is necessary to establish that employees were under the influence or impaired by marijuana at work or during working hours?
First, employers should always be cautious before assuming employees are impaired or under the influence of marijuana, as symptoms related to the use of this substance could also be an indication of certain disabilities protected by federal, state, or local laws. Thus, even if employees exhibit obvious symptoms of impairment, employers should not rush to judgment.
In general, employers should be able to point to specific, articulable symptoms of marijuana use that decrease or lessen employees’ performance of their tasks or duties, or otherwise interfere with employers’ obligations to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws.
Also, even if employees do not exhibit specific, articulable symptoms of impairment, employers may always discipline those who use marijuana during working hours or while on or using business property.
Can employers prohibit all marijuana use outside the workplace?
In some states with legalized marijuana laws, yes. However, in most states with legalized marijuana laws, no.
Can employers drug test employees for marijuana?
In general, yes, except in the states of New York, Nevada, and New Mexico. However, even if no legislation restricts marijuana testing, employers in states with legalized marijuana laws may want to consider excluding marijuana from workplace drug testing of employees in non-safety-sensitive positions.
Can employers drug test employees for marijuana if federal legislation allows for drug testing?
In many states, no. Most states with legalized marijuana and related laws have restrictions on workplace drug testing, and employers must follow these laws even if unrestricted testing is otherwise allowed or not prohibited under federal legislation. However, employers in all states may test for marijuana if it is required under federal or state laws or if these laws make it a mandatory requirement for any licensing or certification for the position at hand.
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