While eleven states have legalized recreational marijuana and thirty-three have legalized medical marijuana, federal law stands to the contrary. The Controlled Substances Act (CSA) criminalizes the use of marijuana as a federal schedule 1 substance.  This tension between federal and state law has created an unpredictable landscape for employees who use marijuana. As Amy Mauer laid out on a previous On Labor post, explicit state statutory provisions or state disability law may provide protection for employees who use medical marijuana. However, employee protections are much more uncertain for employees who use recreational marijuana, even in states where it is legal. 

Legalization of Recreational Marijuana

Statutes that legalize marijuana generally allow individuals who are at lease 21 years old to legally purchase and possess limited amounts of marijuana. For example, in Alaska, Colorado, Nevada, and Washington, an individual may legally possess up to one ounce of marijuana. Nationally, marijuana use has gained considerable public support. A survey conducted in 2018 revealed that sixty-two percent of Americans believe marijuana should be legalized. Currently, recreational marijuana is legal in eleven states, including Massachusetts.

For some, an employee’s off-duty marijuana use is not a concern. Ellen Komp, an advocate for the California National Organization for the Reform of Marijuana Laws told the LA Times, “our position is that people can legally and responsibly use marijuana off the job as long as they don’t show up to work impaired or use it on the job.” In states where recreational marijuana is legal, employee’s off-duty marijuana use is similar to off-duty use of alcohol. However, because of its federal criminal designation, recreational marijuana use has very different consequences than alcohol.

Several employers have drug-free workplace programs or zero-tolerance policies that include marijuana. A survey conducted in 2017 found that 57% of employers performed drug testing. The most common form of workplace drug testing are urinalysis tests. Rather than testing for impairment like a breathalyzer for alcohol, urinalysis tests detect marijuana up to eleven weeks after use. By comparison with other controlled substances, cocaine is detectable for twenty-two days, opioids are detectable for three, and amphetamines are detectable for two. Therefore, an employee could take ecstasy on Friday and perform a clean test the following Monday, whereas another employee could use marijuana on a Friday and fail for the next eleven weeks.

Employers may require drug testing to avoid liability, such as if an employee is under the influence and causes an accident, or if testing is required by state and local agencies. Even in states where recreational marijuana is legal, little stands in the way of an employer who chooses not to hire or terminate an employee for a positive marijuana test.

State Law

While several states’ medical marijuana statutes specifically prohibit discrimination in hiring or penalizing employees based on medical marijuana use, only Nevada extends protection for recreational use. Instead, several states where marijuana is legal explicitly assure the employer that they are For example, in Colorado, the state’s recreational marijuana statute specifically addresses the employment relationship by stating:

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Alaska, Maine and California have similar provisions. In 2019, Nevada became first state to pass a law prohibiting employers from denying employment based on a positive marijuana drug test, regardless of the purpose. In Nevada, an employer may only refuse to hire an employee for marijuana use where it puts others’ safety at risk. New York City also prohibits employers from banning employment based on a positive marijuana test.

Lawful Activities Statutes

Twenty-nine states have statutes that prohibit employers from taking adverse employment action against employees for their actions outside of work. These “lifestyle protection” statues are primarily aimed at protecting workers for being fired for smoking tobacco off-duty. Some statutes extend more broadly to protect “lawful activities” or the use of “lawful products” during non-working hours. Of states where recreational marijuana is legal, only four have “lawful activities” statutes: Colorado, California, Illinois, and Nevada.

Colorado’s lawful activities statute specifically prohibits employers from terminating employees “due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hour.” However, in Coats v. Dish Network, the Colorado Supreme Court held that Colorado’s “lawful activities” statute did not include using marijuana because marijuana was not “lawful” under both federal and state law. Brandon Coats was terminated when he tested positive for marijuana, which he used to treat painful muscle spasms resulting from his quadriplegia. Despite Colorado legalizing both medical and recreational marijuana, until the federal government legalizes marijuana, it is not considered a “lawful” activity to protect employees from adverse employment actions. On February 12, 2020, Colorado legislators decided not to advance a bill that would protect workers from being fired for using marijuana off-duty.

No cases have been litigated to determine whether marijuana use is protected under Nevada, Illinois or California’s lawful activities or products statutes.

Trends Among Employers

Despite legal uncertainty, several employers are voluntarily loosening the reigns on employee use of marijuana. As Judi Braswell of Behavioral Health Systems told CNBS, “the labor pool is so tight that [employers] feel like drug testing is going to prevent them from being able to staff adequately so they don’t drug test at all.” For example, Caesars Entertainment, one of Nevada’s largest casino companies, and Apple have quit pre-employment drug testing. Caesars Entertainment Press Secretary acknowledged that testing for marijuana use may eliminate good job candidates.

A new type of drug test, predicted to hit the market in 2020, could also provide both employers and employees relief. The new test will measure marijuana impairment rather than marijuana use up to eleven weeks prior to the test. Testing for marijuana impairment, similar to a breathalyzer for alcohol, would more narrowly limit employer’s decisions to take an adverse employment action to situations where the employee’s off duty conduct more directly affects the job. Employees could responsibly use marijuana without the fear of being fired while employers could retain a larger pool of job candidates and employees. Therefore, while state law provides little to no protection for employees who use recreational marijuana, trends among employers and advances in drug testing may provide greater consistency.