Contact Stephanie Schuman,
Principal Counsel & Attorney-at-Law

The Impact of Marijuana Laws on Employment Contracting & Policies

Over the past decade, states across the country have legalized the use of marijuana in some form. Twenty-nine states -- including New York, New Jersey, and Connecticut -- and our nation's capital currently permit the use of marijuana for medicinal purposes. Nine states, in addition to Washington, D.C., have expanded legalization to limited recreational use of the drug. The trend to legalize marijuana at the state level shows no signs of stopping, even with the threat of federal action.

If you operate a business in a state where marijuana is legal you will want to know how these laws affect you and your business. The attorneys at Leaf Legal, P.C. can help you evaluate your employment policies and contracts to ensure that they strike the delicate balance between workplace safety, your operational goals, and respecting your employee's rights.

Policies Prohibiting or Restricting Drug Use

Employers have the right to design employment policies that help to create and maintain safe workplace environments. Many of these policies contain provisions that prohibit an employee's use of illicit drugs and/or alcohol. Some policies prohibit the use of chemical substances in any manner while others prohibit employees from showing up to work under the influence. In light of the legalization of marijuana in your state, you may want to know if your internal policies are applicable or still enforceable.

The answer will depend on (a) the specific state in which you are located and (b) the type of business you operate. While marijuana use may be legal at the state level, federal law still prohibits any use of the drug. If you operate a business that receives federal funding and/or requires federal licensing, you must abide by federal law. It will be important to evaluate your internal policies in light of both state and federal law.

The Right to Require Drug Testing

Many employers require their employees to submit to regular or random drug testing. Does the legalization of marijuana prohibit employers from administering these tests? Again, the answer will depend on the type of business you operate and jurisdiction. Generally speaking, at-will employers have the right to restrict an employee's conduct if doing so is necessary to ensure safety.

Recreational vs. Medicinal Marijuana

In light of marijuana's legalization in your specific state, there are a number of factors employers should consider when drafting policies or employment contracts. Some of those factors include:

  • Marijuana is still a Schedule I drug. Under federal law, marijuana's distribution and possession are prohibited. State medical marijuana laws permit physicians to recommend medicinal marijuana, but not necessarily prescribe it.
  • Policies attempting to prohibit any use of marijuana may be more problematic in states where the use of medical marijuana is permitted. States that have legalized medical marijuana have acknowledged that the drug has benefits in treating illness, disease, and chronic issues. Many of these states have also included legal provisions that protect employees from adverse employment action if they test positive for marijuana use. Drafting rigid employment policies that penalize an employee for using a valid medical treatment may stir up issues of discrimination. Employers should review their drug policies to ensure that any prohibitions on the use of the drug are in place to ensure the advancement of health, safety, and legitimate business practices.
  • Safety still matters. There could be safety risks that an employer must consider. Just as most employment policies or contracts do not permit persons to arrive at work under the influence of alcohol even though alcohol is legal, employees may not be permitted to arrive at work under the influence of medical marijuana if there are safety concerns associated with it.

Taking these and other factors into consideration, an employer should develop employment contracts and policies that encompass the values of the business, federal and state laws, and safety concerns. Employment policies should include clear, unambiguous terms should be provided to all employees, and should comply with the laws.

Get Help Reviewing Your Employment Contracting Policies

If you operate your business where marijuana is legal for medicinal or recreational purposes, it is important to review internal drug policies and procedures. As laws change, employment contracts and policies must also change to comply. The State of New York, for example, has an enacted a statute that specifically provides that medical marijuana use is protected under the state's version of the ADA since medical marijuana users are considered to be "disabled" under New York's civil rights laws.

The attorneys at Leaf Legal, P.C. are prepared to provide comprehensive legal guidance to you and your business. Call us today to learn about how we can help you review your employment policies and contracts.

The Truth About the Risks

Know for sure whether your business is in compliance with state and local cannabis regulations.