October 27, 2022
Now that the legalization of marijuana is on the November 2022 ballot in Maryland, we are getting more questions about what impact the legalization of marijuana use has on employers. Can employers prohibit use? Generally, for most employers not bound by restrictions of strict drug free requirements (e.g., certain government clearances), we advise employers to adopt policies treating cannabis use like alcohol use -- it is prohibited in the workplace and that if anyone is intoxicated during the workday, efforts are made to remove the person from the workplace as appropriate. Assuming no impairment on the job, there is little an employer can do to stop activities during nonworking hours.
California approached the issue in a similar manner and just joined a growing list of states which have employee protections for the recreational use of marijuana including Connecticut, Illinois, Montana, New Jersey, New York, and Rhode Island. Starting January 1, 2024, employers in California will be prohibited from interfering with their employees’ off-duty use of marijuana. Except where a bona fide job requirement, employers are not permitted to refuse to hire, fire, or otherwise take an adverse action against an employee based on the employee’s “use of cannabis off the job and away from the workplace.” Employers can continue to prohibit marijuana use on the job and/or at the worksite. The law specifically states that there is a “consensus” that employees “should not arrive at a worksite high or impaired.” Employers may still maintain drug-free workplaces and prohibit the possession of marijuana at the workplace.
The California law also prevents screening tests since it recognized that because most marijuana tests can only detect whether cannabis metabolites are present, they have “no correlation to impairment on the job.” Employers need to instead rely on alternative tests to determine whether an employee is under the influence at work, i.e., “impairment tests” which “measure an individual employee against their own baseline performance.” Such tests measure motor function, the visual effects of being high, and/or obvious cognitive impairments. Be wary, however, because there is no universal definition of what constitutes “impairment” and the tests can be very subjective.
As we end Q4 2022, now is a good time to evaluate your workplaces policies and ensure supervisors and employees have a good understanding of what will happen in these situations.
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