Can Employees Face Consequences for Off-Duty, Legal Cannabis Use?


Heading into 2020, many analysts project that legal cannabis use on a national and federal level will be inching forward toward the ballot. On December 1, 2019, Michigan became the 12th state in the nation to legalize recreational cannabis use while another 19 states offer legalized medical cannabis use.

However, one major question remains for employers: How do they go about hiring or firing employees who use cannabis legally?

In nearly all states, employers are still free to set their own standards and are free to fire employees for being under the influence of cannabis at work. But what about off-duty use of cannabis? It’s important to look at the state-by-state scenario to see what an employer can and can’t do.

Drug Testing

If an employer administers a drug test, and the employee has cannabis in their system, it’s up to the employer to decide their next steps. However, if the drug test was administered illegally, the employee cannot be fired based on their results. While there are no federal laws with restrictions on drug testing, some states carry their own laws.

There are states with laws that address when and how employers can conduct testing for drug use. Employers are usually free to drug test job applicants on a regular basis after making it a condition of an employment offer. There are some states, however, that are not allowed to conduct any drug testing, be it routine or random, of employees who are already employed by the company.

In this case, the employer must prove that the employee was intoxicated, they were involved in a work-related accident that resulted in injury or property damage, or they hold a position that’s sensitive to their safety. For those who feel they have been discriminated against and unfairly or illegally tested for cannabis use, they have it in their right to sue their employer.

There has been a rise in these types of legal cases, causing financial and reputational damage to businesses. For companies that find themselves on the receiving end of a lawsuit, having the right resources is next in line to understanding the laws in their state. Having employment practices liability insurance to protect against costly claims and provide funds for proper representation is vital in today’s somewhat ambiguous off-duty cannabis landscape.

Medical Cannabis Usage

In states where medical cannabis usage is legal, people with serious health issues can register for a medical cannabis card as long as their doctor has authorized this kind of treatment. For those who use cannabis at a medical level, they are protected from being prosecuted under state law.

In states where medical cannabis use is legal, there are medical cannabis employment protections, including Illinois, Arizona, and Delaware. In general, employees cannot be fired or discriminated against for being a registered medical cannabis user or because they test positive for cannabis after a drug test. In short, these employees are protected from getting in trouble for off-duty cannabis use, but only for medicinal purposes.

The fact still remains, however, that employers can fire employees for being under the influence of cannabis during work hours. If they use it off-site, then head back to work still under the effects, protections do not remain.

Recreational Cannabis

In 2012, Colorado and Washington became the first states to vote in legal cannabis use on a recreational level. Since then, 10 states have followed suit, including the aforementioned Michigan and California. But discipline from an employer comes down to a state laws basis. In California, for example, employers are not required to accommodate medical or recreational cannabis use in the workplace. In fact, many of the states with recreational cannabis use laws expressly state that they don’t affect an employers legal right to continue to enforce a zero tolerance policy.

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