A growing number of states have enacted laws allowing adults to use recreational marijuana, which can raise questions about employers’ rights and responsibilities for enforcing drug-free policies in the workplace. Here are answers to some frequently asked questions about recreational marijuana laws.

Q: Which states currently have approved laws that allow recreational marijuana?

A: The following 20 states (shown in blue) have enacted laws that allow adults to use recreational marijuana:

*South Dakota's law is currently blocked by a court.

Q: If my state allows recreational marijuana, do I have to allow employees to use it at work?

A: No state requires employers to allow employees to use, possess, or be impaired by recreational marijuana while working, in the workplace, or on the employer’s premises. You may still prohibit recreational marijuana use in the workplace, just as you may prohibit alcohol use in the workplace.

In your drug-free policy, make clear that employees are prohibited from using, possessing, or being impaired by drugs that are illegal under federal or state law (including marijuana) in the workplace or during work hours.

Q: If my company allows employees to smoke cigarettes on their rest breaks outside, do I have to allow them to smoke marijuana as well now that our state permits recreational marijuana?

A: Generally, you can still prohibit marijuana use at work (see QA above), including during breaks, just as you may prohibit alcohol use.

Q: Can I prohibit employees from using recreational marijuana while off-duty?

A: Some state laws have express protections for off-duty use of recreational marijuana, as long as the employee doesn’t report to work impaired. Some of these states include but aren’t limited to:

• Connecticut. Connecticut recently enacted legislation that allows adults to use recreational marijuana beginning July 1, 2021, and generally prohibits employers from taking adverse action against an employee because they use recreational marijuana outside the workplace, unless the employment action is made pursuant to a written policy prohibiting recreational marijuana possession, use, or other consumption by an employee. The employment protections take effect July 1, 2022.
• Illinois. Illinois allows the use of recreational marijuana in the state and also has a law that prohibits employers from taking adverse action against an individual because they use "lawful products" off employer premises during nonworking hours. The recreational marijuana law includes a provision that amends the off-duty conduct law to clarify that lawful products are ones that are lawful under state law, which now includes marijuana.
• Montana. In May 2021, Montana enacted legislation that will implement the state’s recreational marijuana law and generally prohibit employers from refusing to employ and discriminate against an individual because they legally use a lawful product (including marijuana) off the employer's premises during nonworking hours. These protections take effect on January 1, 2022.
• Nevada. In 2019, Nevada enacted legislation that generally prohibits employers from refusing to hire a prospective employee because they submitted to a drug test and the results indicate the presence of marijuana.
• New Jersey. In February 2021, New Jersey adopted a law that generally prohibits employers from taking any adverse action against an individual who uses cannabis during non-work hours. The employment-related protections don’t become operative until initial rules and regulations are adopted. Watch for further developments.
• New York. In March 2021, New York enacted legislation that legalizes recreational marijuana use and generally prohibits employers from taking adverse action against employees or applicants who legally use or possess marijuana products during non-work hours or while they are outside the workplace.

If you have operations in a state that permits recreational marijuana, make sure you understand and comply with applicable employment protections (if any). Given the complexity of these laws, you may want to consult legal counsel to discuss your rights and obligations.

Note: Some of the laws covered above have additional employment protections for off-duty use of recreational marijuana. In addition, many states have medical marijuana laws, some of which have their own employment protections.

Q: Are there any exceptions to state protections for off-duty use of recreational marijuana?

A: Many of the laws with employment protections for off-duty use do include exceptions. For example, some states make exceptions if allowing off-duty use would violate a federal contract, violate federal law or another state law, or cause the employer to lose federal funding. As an example, in Montana, the following exceptions to its employment protections will apply:

• Use that affects an individual's ability to perform their responsibilities or the safety of other employees, or conflicts with a bona fide occupational qualification.
• An individual who has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products.
• Nonprofit organizations that, as one of its primary purposes or objectives, discourages the use of marijuana by the general public.

Check your state law for details.

Q: For the past several years, my company has required pre-employment drug tests. If my state now allows recreational marijuana, can I still test for marijuana?

A: Depending on your state and local jurisdiction, you may be prohibited from performing pre-employment testing for marijuana or prohibited from taking adverse action based solely on the results. For example, New York City prohibits employers from conducting pre-employment testing for marijuana. In New Jersey, employers will be prohibited from taking adverse action against an applicant or employee on the sole basis of testing positive for marijuana. Check your state and local laws for details.

Q: If I believe an employee is impaired by recreational marijuana at work, what can I do?

A: If an employee is impaired at work, you can generally discipline the employee up to and including termination, as long as your policy is applied in a nondiscriminatory manner. However, if the decision is ever challenged, you may need to demonstrate that you had a reasonable basis for believing the employee was impaired. Some of these recreational marijuana laws provide guidance on what is considered a reasonable basis. Before an issue arises, you may want to work with legal counsel to discuss applicable rules and guidance.

Q: I operate a trucking company that is subject to U.S. Department of Transportation (DOT) regulations regarding drug testing. How do recreational marijuana laws impact my DOT obligations?

A: There may be situations in which you’re required to take action against an employee who uses marijuana. For example, the DOT states that it's unacceptable for any employee in a safety-sensitive position (and subject to DOT drug testing regulations) to use marijuana. If an employee in such a job fails a drug test for marijuana, the employee is barred from performing safety-sensitive duties until they've seen a substance abuse professional and successfully completed the DOT's return-to-duty process, which includes a drug and/or alcohol test. This is true even in locations that permit recreational use.

Conclusion:

Employment protections for recreational marijuana continue to evolve, with court cases regularly testing the scope of worker protections. Check your state law and work closely with legal counsel to determine your rights and responsibilities.