As the popularity and legality grow surrounding marijuana in America, business leaders are left with questions regarding employment and marijuana. With 19 states having legalized the recreational use of marijuana and 38 states legally protecting the use of medical marijuana, can an employer deny employment to a job seeker who tests positive for marijuana or, for that matter, terminates an employee for marijuana use?
Why Your State Matters
In states where employment is “at-will,” meaning companies can dismiss workers without a “just cause,” firms likely can prohibit marijuana consumption regardless of state or federal law. Some states are also providing “outs” for employers. For example, California’s Proposition 64, which legalized recreational marijuana use, says California employers can penalize workers who test positive for marijuana use, whether or not they were high on the job.
Furthermore, with recreational marijuana use still illegal at the federal level, employees of federal agencies, as well as workers in federally regulated industries, such as transportation, banking, and health care, are prohibited from using marijuana—even during off-hours. Employers outside of those industries should stay abreast of changes in state laws, including not only marijuana usage laws but also drug-testing laws.
Firms in states where marijuana use is legal—whether for medicinal or recreational purposes—should not take adverse action against a candidate without consulting legal counsel. (Ten states have “compassionate care” statutes that allow marijuana to be used for medical reasons. Under these laws, employers generally cannot disqualify someone from work because that person tested positive for marijuana.)
Recreational Vs. Medical
There is a big difference between adult-use cannabis, which people use for recreation, and medical cannabis, which doctors prescribe to patients to treat various conditions. Some states have laws that take this distinction into account at work and can affect an employer’s drug policy.
Even though marijuana is federally illegal, employers are allowed to have a drug-free workplace and to enforce zero-tolerance policies. However, small business owners need to be aware of whether any of their employees are medical marijuana patients and if state laws protect their usage of cannabis in the workplace or against the failure of employer-mandated drug tests.
Policies regarding drug use in the workplace can be complicated, especially when it comes to employee morale. Many employees argue that legal cannabis use outside of work should not be grounds for termination if they fail a workplace drug test. Employers need to keep in mind the attitude of their workforce when making disciplinary decisions related to drug testing.
What Are Most Companies Doing?
Companies react to marijuana in the workplace depending on the state you are working in and the industry you are working in. For some, the overarching legality of marijuana on the federal level has made them wary and has led them to implement a zero-tolerance plan.
However, most states that have legalized medical or recreational cannabis leave the testing decisions up to the individual employer’s discretion. A handful of states have policies that require employers to make accommodations for these patients, but significantly fewer states have this requirement.
If you are not sure about your state’s stance on this, please make sure you are doing your research before making any final decisions.
Where Barada Stands
As a leader in employment services, what Barada thinks on the matter will often influence other businesses. Barada has always urged companies to develop and maintain comprehensive, legally acceptable drug policies. As laws over marijuana legalization continue to evolve, it will become increasingly important for these policies to address marijuana use.
It will also become more and more critical for you to pay attention to laws surrounding your state and the overall federal laws. If your company is not on top of this, you could find yourself running into legal issues down the road.
Contact us Today with Questions
If you still have questions about employment for marijuana users in states where it is not legal, reach out to our employment experts today.
Barada is an industry-leading background-checking company and provides high-quality services to a variety of companies. If you are struggling to find the best fit employees for your company, reach out to us today!