Hiring in a State that has Legalized Marijuana


Hiring in a state that has legalized marijuana can be quite a conundrum for employers. You want to maintain a drug free workplace, yet medical (and sometimes recreational) marijuana may be legal for your employees to use. Much like an employee with a drinking problem, an employee who abuses marijuana becomes a liability when their off-the-clock excesses start coming into work with them. However, unlike a worker with a drinking problem, firing someone with a medical marijuana prescription can be much trickier.

While only nine states and Washington DC, (Colorado, Oregon, Washington, Alaska, California, Nevada, Vermont, Maine, and Massachusetts) have legalized marijuana for recreational use, and 29 states have legalized marijuana for medicinal use, the widespread proliferation of marijuana use has become a concern for employers. While it is still legal to fire someone for using drugs at work, the grey area for firing medical marijuana users is becoming larger and larger.

All companies should provide a safe environment for their employees to work. For most employers, this means maintaining a drug-free workplace. Employees who are effected by drugs or the after-effects of drugs are less effective at their jobs and are more likely to make mistakes or cause accidents at work.

But it’s not as simple as that.

Many states have measures in place that protect medical marijuana users, complicating the procedure for firing them. Employers who do not observe state or federal law while firing or hiring employees with medical marijuana prescriptions can be caught up in a wrongful termination lawsuit. Though Colorado’s Supreme Court just ruled against a medical marijuana user who failed their drug test in a wrongful termination case, this ruling only applies in Colorado and businesses in other states are still susceptible to lawsuits.

So how do you maintain a safe, drug-free workplace when your company is operating in a state that has legalized marijuana?

Refer to State Guidelines

You should always refer to your state’s specific laws and procedures for drug testing employees and the policies for employing people with medical marijuana prescriptions.

If marijuana has been legalized in your state, you should search for which employment laws, specifically, have changed. Even if it means paying for some legal counsel, you must understand how the law has changed and how your company’s drug policy measures up against it. In the end, you must be sure that your company’s drug and drug testing policy is in compliance with the new guidelines in your state.

For instance, when it comes to employees drug tests, the law varies from state to state. It is legal to fire an employee with a valid medical marijuana prescription for failing a drug test in California, Montana, Oregon, Washington and Oregon. However, you cannot fire a medical marijuana patient for failing a drug test in Arizona, Delaware and Minnesota. These laws vary greatly throughout the country and researching your state’s medical marijuana laws is the only way to make sure that your company is in compliance with the law.

Drug testing helps to ensure a productive, drug-free workplace. By ensuring your company’s policy aligns with the laws in your state, you can continue screening without opening yourself up to a lawsuit.

Refer to Government Guidelines

Marijuana is still defined as an illegal controlled substance by federal law. If your company receives federal funding or is under any sort of federal regulation, then the drug use of your employees is still subject to the Drug Free Workplace Act of 1988.

Federal law does not protect medical marijuana users. Companies that are federally regulated or funded and employ medical marijuana users can be caught in an awkward, expensive position.

If your company is federally regulated or funded, make sure that you continue to follow guidelines for maintaining a safe, drug-free workplace.

Update your Company’s Drug Policy

Once you have gotten a clear understanding of your state’s guidelines for screening out and firing medical marijuana users, make sure that your company’s policy is aligned with these guidelines. If you are unsure, or are planning on making changes to your company’s drug policies, then consulting with a lawyer will ensure that your company is safe from legal trouble.

Your company’s old drug policy may violate state law, and the last thing you want is a lawsuit. When updating your company’s drug policy, make sure that you include specific expectations for impairment in the workplace and marijuana use. Establishing clear expectations will make building a case for termination much easier when the problem employee is a medical marijuana user. By establishing specific expectations in your company’s official policy, you can protect yourself from hiring an entrenched, under-performing, over-medicating employee.

As more and more states legalize marijuana, more and more employers are struggling to maintain a fully drug-free workplace. By updating your company’s drug policy to be compliant with the laws in your state, you can maintain a drug-free workplace and protect your company from legal liabilities.


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