Cannabis in the Workplace and Employment Law Considerations

By Julie Webster-Matthews

U.S. history is full of examples of conflicts between federal and state laws when it comes to controversial issues, but one of the more intriguing areas where this conflict is playing out in real-time is with the regulation of cannabis.

Under the Controlled Substances Act in Title 21 of the U.S. Code, marijuana remains a “Schedule 1” drug — alongside narcotics such as heroin and LSD — and therefore a blanket federal prohibition against cannabis is still in place.

Meanwhile, a super-majority of states have legalized the possession and use of cannabis for various purposes. As of April 2023, 38 states, three territories and the District of Columbia allow the medical use of cannabis products, while 21 states, two territories and D.C. have enacted measures to regulate cannabis for adult non-medical use as well, according to the National Conference of State Legislatures.

The result of these fast-changing social attitudes and state regulation of cannabis is that marijuana use has become more acceptable, even while it remains against federal law. In fact, Americans now spend more on legal marijuana than chocolate, with sales at marijuana dispensaries topping $30 billion in the last year. This is creating a complex dilemma for employers to maintain a safe, productive and legally compliant workplace.

“What does this dual state and federal status mean for the traditional prohibition against marijuana use at work?” asks Christopher Avcollie, managing attorney at Carey & Associates PC. “Can someone be fired for using pot at work in states where it’s legal for all adults? Can people be fired for using medical marijuana on duty? The answers are elusive and depend on a confluence of state and federal law, as well as employer policies.”

One of the factors that contributes to the complexity of this problem is the protections for workers that are built into the state laws legalizing cannabis, according to Lexis Practical Guidance. Indeed, in states where marijuana laws have been enacted, courts are beginning to rule in employees’ favor.

For example, in Barbuto v. Advantage Sales and Marketing, LLC, a medical marijuana user who was fired secured a ruling from the Supreme Judicial Court of Massachusetts that she could sue her employer for discrimination. The case was eventually settled. A Superior Court in Rhode Island issued a similar ruling in a case where a plaintiff sought to sue an employer for refusing to hire her based on her possession of a medical marijuana card.

In most states, employers remain free to decide what to do about employees’ use of marijuana on the job. Indeed, many employers maintain a “zero tolerance” policy when it comes to drug use at work, which is enforced by on-the-job drug testing programs. That said, in many states it is unlawful to fire an employee for legal conduct that occurs on their own time, and it is possible — if not likely — that an employee will test positive for marijuana that was used on their own time. Employers must be careful, therefore, to assess each situation on a case-by-case basis and to adequately understand the law of the applicable jurisdictions. A positive test result does not necessarily mean that the employee is impaired, a threat to the safety of others and/or a threat to the company.

With the expansion of medical and recreational marijuana laws, labor and employment attorneys must keep up with the evolving legal and regulatory landscape. The Lexis Practical Guidance team has created a Cannabis Resource Kit, which provides an overview of reference materials related to cannabis regulation across many practice areas — including Labor & Employment. This content is updated regularly with new information and contains links to accurate legal research resources, including secondary materials and news reports.

Other relevant legal resources provided by Lexis include:

• Cannabis Employment Law Video
• Medical and Recreational Marijuana State and Local Law Survey
• Labor & Employment Key Legal Development Tracker
• Drug and Alcohol Use, Testing and Accommodation Practice Note
• Substance Use and Abuse Policy Template

LexisNexis recently hosted a webinar, “It’s Time to Talk About Cannabis in the Workplace,” that summarized state laws regarding cannabis legalization across the U.S. and provided a brief review of employment law issues surrounding drug use in the workplace. The program also surfaced resources from Lexis that can assist practitioners with developing best practices for advising business teams on this topic. Watch a recording of the webinar.

All of the resources discussed during the webinar are available to practitioners on Lexis+, an all-in-one platform from LexisNexis that combines superior research and data-driven insights. The site provides legal professionals with all of the tools and resources necessary to practice with confidence and efficiency: Legal Research; Practical Guidance; Litigation Analytics; Brief Analysis; and Legal News Hub. For more information about Lexis+ or to experience it first-hand, get a free trial.