So Your State has Legalized Marijuana

Has your state legalized marijuana for recreational or medical use? Or is it expected to do so? You may be wondering how the conflict between federal and state law will affect your ability to test your employees for marijuana and prohibit its use. Here are some insights into an evolving situation.

“It is still legal to test for marijuana in every jurisdiction,” says Nancy N. Delogu, a shareholder in the Washington, D.C. office of Littler Mendelson, the nation’s largest law firm defending employers in labor disputes (littler.com). “And it is still legal to decline to hire or employ workers who use marijuana for recreational purposes.”

One caveat, says Delogu: “If you don’t want to know if your employees are using marijuana, don’t test for it. Knowing that someone uses marijuana and failing to take steps to ensure that he or she doesn’t work while impaired could lead to liability if the employee does something that harms a third person.”

As for the medical use of marijuana, know your state law. “In a few states that ask employers to accommodate medical marijuana use, terminating the worker following a positive test without evidence of impairment could be risky,” says Delogu. “In New York, for example, if marijuana is being used for medicinal reasons the employer might have to determine whether it could accommodate that work in some way so as to permit effective work.” (Although, to date, no court has held that an employer must accommodate such use while federal law differs).

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Finally, says Delogu, it is “absolutely and everywhere” allowable to terminate any employee who brings the marijuana substance into the workplace.

The insights above are provisional, so consult with your attorney about your own state and local legislation. “It’s important to know the current law in your jurisdiction and to watch for updates,” says Delogu. “This area of the law is very dynamic and changing all the time.”

Phillip M. Perry is an award-winning business journalist based in New York City. He covers management, employment law, finance, and marketing for scores of business magazines.