Effectively navigating the marijuana landscape is not an easy proposition for anyone, especially employers. Nearly all states have some form of law legalizing marijuana, each with their own nuances, despite the fact that it remains a Schedule I substance under the Controlled Substance Act (making it illegal for any reason under federal law). Further, with more remote workers—many in states that differ from the employer’s state—the uncertainty regarding marijuana only rises. Determining how these laws impact employers’ drug-free workplace policies, accommodations for employees, and drug testing processes, including laws prohibiting such testing, continues to be an uphill battle, particularly with the patchwork of laws across the country rapidly increasing. In an effort to keep employers informed, we’ve compiled the latest marijuana headlines.
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New Marijuana Legislation Impacting Employers
California
Two pieces of legislation, enacted in 2022 and 2023, and both effective as of January 1, 2024, have brought some recent changes to California’s employment landscape regarding the treatment of an employee’s or applicant’s use of marijuana. California Assembly Bill 2188 states that, other than certain exceptions, “it is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.” California Senate Bill 700 takes another stance in stating that it is unlawful for employers “to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon” off-duty marijuana use or drug tests that reveal non-psychoactive cannabis metabolites.
Washington
In Washington State, the newly effective marijuana law (effective January 1, 2024) is strikingly similar to California’s laws. The law protects workers from facing employment discrimination during the hiring process over their lawful use of cannabis. Specifically, employers are prohibited from making initial hiring decisions based on an applicant’s cannabis use outside of work, or due to a positive test or screening that detects non-psychoactive cannabis in hair, blood, urine, or other bodily fluids.
Other Notable Marijuana News
Hawaii
Two Hawaii legislative committees recently approved a bill to legalize recreational marijuana in the state. If passed, the law would go into effect on January 1, 2026. The legislation would allow adults aged 21 and older to possess up to one ounce of marijuana and up to five grams of cannabis concentrates. The law would also permit home cultivation of up to six marijuana plants and allow for the possession of up to 10 ounces of harvested homegrown cannabis.
Florida
Florida Gov. Ron DeSantis (R) recently commented that a marijuana legalization initiative will be on the state’s November ballot as a proposed constitutional amendment. This isn’t the first time this has been attempted in Florida, and the state’s attorney general continues to seek to block the vote. However, if it makes it to the statewide ballot and voters pass the amendment, anyone 21 years old and older would be able to use and possess up to three ounces of marijuana (with not more than five grams in a concentrated form), with certain restrictions. Under the proposed amendment, marijuana could be sold through dispensaries without the need for a medical marijuana card.
Background on the Marijuana Landscape
Employers have long since grappled with the effects of marijuana use by their employees, especially concerning workplace accidents. Over recent years, research has shown an increased likelihood of errors and impaired judgment leading to accidents when individuals are under the influence of marijuana. This can be especially dangerous in positions involving safety. As such, a National Safety Council white paper recommends a zero-tolerance policy for marijuana in safety-sensitive positions. Similarly, OSHA advocates for post-accident drug testing as a “legitimate part of a root cause analysis to determine the cause of an accident.” Once again, the inconsistencies between states’ laws and between state and federal policy renders the entire situation foggy, at best.
Employers face more than just concerns about accidents related to employees’ marijuana use, though. Employee marijuana use could also easily harm a company’s reputation, raise absenteeism rates, jeopardize safety, or result in costly errors, leading to decreased productivity and profitability. Additionally, navigating internal policies regarding marijuana use poses its own unique challenges, including defining permissible behavior, outlining prohibitions, and interpreting positive test results accurately. Complicating matters further is a lack of scientifically validated drug tests for marijuana. Simply, marijuana staying in a person’s system far longer than alcohol makes it extremely difficult to determine impairment during accidents or testing.
What Can Employers Do About Marijuana in the Workplace?
Similar to other laws that impact employers, their policies and procedures, and decisions, the patchwork of marijuana laws demands compliance and continuous attention. As the uncertainty surrounding marijuana use in the workplace persists, employers must maintain vigilance. Unfortunately, there is no definitive guidance available, regardless of the employer’s location. Furthermore, with the significant increase in remote employees, employers must stay informed about legal developments in other states.
To mitigate risks, employers may want to consider the following strategies:
- Stay updated on laws across various jurisdictions where they do business.
- Establish a clear, written drug-free workplace policy with which all employees are familiar (and sign off on).
- Revise the policy as necessary in response to new legislation that impacts the location(s) in which the company operates.
- Conduct regular safety meetings to reinforce policies and address concerns.
- Provide continuing education on the potential risks of impairment to both managers and staff.
- Train managers regularly to recognize signs of impairment and guide appropriate actions in such situations.
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