By Mishka Parkins – Workplace policies regarding marijuana use are no longer black and white. Over the past few years, a growing number of states have legalized the use of marijuana for medicinal and recreational use. Many employers, on the other hand, have passed on the trend. Medicinal marijuana use is legal in 34 states and the District of Columbia. Legalization of recreational use is also on the rise. Ten states and the District of Columbia have legalized recreational marijuana use. On the federal-level, however, Marijuana is still classified as a Schedule I drug not recognized for medicinal use. This difference is worth noting especially for nonprofits that receive federal funding. Despite relaxing regulations on the state levels, organizations that are federally funded or have federal contracts must still be in compliance with the Drug-Free Workplace Act of 1988. 

Clearly, there is little congruence between local and federal laws. This divergence is further compounded by the strict drug-free workplace and testing policies that prohibit the use of all “illegal drugs” policies of individual employers. But things get a bit cloudy when it comes down to medical use. In Massachusetts, for example, “reasonable accommodation” is made for employees’ medical conditions. In 2017, the Massachusetts Supreme Court ruled in favor of her right to sue under the protections of disability discrimination. 

Outside of recreational use the policies regarding medicinal use are clear, right? No, and some employers are facing this harsh reality from lawsuits ruled in favor of terminated employees. In Connecticut, Rhode Island, Arizona, and Delaware, employees that were fired for failing drug tests because of medical marijuana won cases against the former employers. In each case, judges found that employers violated medical marijuana statutes.

How should employers navigate this gray area? Employers’ policies should restrict marijuana use to the extent permitted by law. This means that employers will need to get used to tracking the ever-moving targets of marijuana laws in all jurisdictions that they conduct business. The changing laws will also require that employers revise employment policies to keep up with new legislation. Staying informed of relevant court cases will also provide insights on how local courts tend to handle related cases. 

If you need some more insight, here are some resources that can help:

XpertHR’s Guide Marijuana in the Workplace

Questions to ask when setting up a company marijuana in the workplace policy

How Do Recreational Marijuana Laws Affect the Workplace?

Sample Drug Policy Language

Mishka Parkins
Marketing & Communications Manager