On July 1, 2023, Maryland joined several other states in legalizing recreational marijuana consumption. Although some people are celebrating this, a lot of employers and HR personnel are wringing their hands and worried about what impact this will have on the workforce. Traditional approaches to drug testing and zero tolerance no longer apply for most employers. (Of course federal employers and most government contractors must still adhere to policies that do not condone or tolerate use.) For most employers who are expecting a wave of stoned employees at work who will have to be disciplined, sent home or discharged, the practical impacts may be more imagined than reality.

The reality is that those who intended to use and would use at work, already likely had access through medicinal cards or other means. If you did not notice any issues in their performance before, it is not likely you will now see a difference. For those people who have been curious about trying cannabis or avoided because of illegality, they are not likely to suddenly sacrifice their employment in the interest of substance experimentation.  

For those borderline employees who may have control issues, employers need to appreciate that at this time, traditional and accessible testing is not advanced enough to detect THC levels showing intoxication. The presence of THC in someone’s system is very different from alcohol testing and marijuana metabolizes very differently. A positive test indicates use at some point in the past but the timing of the use is not clear.

So what are employers to do?

Just like alcohol, employers can continue to ban cannabis possession, sale or consumption while at work and ban intoxication or working under the influence while on the job. Consistent with the same approach, employers need to be vigilant for performance problems and behavioral abnormalities and document those issues. If there is a suspicion that there is cannabis use on the job or there is an on the job injury or accident, testing can be conducted. Before electing to do so or acting on the results, make sure you understand the meaning of the results and ensure proper protocols are in place to avoid negative action based on unsubstantiated results or testing. If there is suspected cannabis use while on the job, make sure managers are properly trained on what to observe to reach that conclusion and ensure they have properly documented their observations.

Not to be forgotten, if someone is under the influence of cannabis or observed using at work, make sure you treat them consistently with other individuals in similar situations involving alcohol or drugs. Marijuana users are not a protected class but anytime people are disciplined inconsistently, employers are taking needless risks.

The most unique aspect which needs to be navigated which is different from alcohol consumption is what to do when someone has used cannabis but has a medicinal excuse for the test. Keep in mind that although impairment on the job may be barred, the ADA could be triggered and accommodations may now be necessary.

For assistance navigating weed in your workplace, reach out to any of our RKW Law Group employment lawyers.

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