In recent years, a handful of states have enacted employment discrimination protections for recreational marijuana users that purport to create limitations on how an employer may use the results of an employee’s positive drug test. These new legal restrictions place employers in the difficult position of forgoing reliance on the objective results of a positive drug test in favor of subjective indicia of intoxication when making employment decisions. An employer that fails to identify and remove an intoxicated employee from the workplace may be exposed to claims by third parties and employees should an accident occur. But an employer that mistakenly finds that an employee is intoxicated in the workplace may be exposed to claims by that employee for unlawful discrimination on the basis of recreational marijuana use.

This article provides a brief overview of federal and several states’ laws concerning the recreational consumption of marijuana. It then summarizes the implications of that landscape in terms of employee drug testing. Finally, this article provides practical tips that may reduce the risk of liability for employers as a result of a changing legal landscape.

Federal Law on Marijuana

The federal Controlled Substances Act states that “[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance” such as marijuana. However, a Department of Justice memorandum from 2013 entitled “Guidance Regarding Marijuana Enforcement” states that the “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.” While the memorandum does not address federal preemption, it appears to assume that federal law does not exclude state-level legalization and regulation of marijuana. To be sure, some federal and state courts have also embraced this perspective, holding that the Controlled Substances Act does not preempt state laws regulating the lawful consumption of marijuana. However, a number of federal and state courts have ruled in the opposite direction, namely, that state laws cannot run counter to the explicit prohibitions of the Controlled Substances Act.

Federal law also requires certain employers to impose more stringent prohibitions against the use of marijuana by employees in certain industries. For instance, pursuant to the Omnibus Transportation Employee Testing Act of 1991, employers operating in safety-sensitive transportation industries such as aviation, trucking, railroads, mass transit, pipelines, and others, must maintain zero-tolerance drug policies, including but not limited to implementing mandated drug testing. Similarly, Executive Order 12564 prohibits drug use by any federal “employee in a sensitive position,” including those involved in “law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence,” again mandating a robust anti-drug workplace program that includes drug testing. Such federal obligations create little room for state-level variation within these industries and for these positions. But in the six states described below, employers that are not covered by these federal requirements are now subject to new rules concerning employee drug testing.

State Protections for Recreational Marijuana Users

Six states have enacted laws that prohibit employment discrimination against recreational marijuana users:

• New Jersey law prohibits discrimination “because [a] person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” N.J. Stat. Ann. §24:6I-52(a)(1).
• New York law prohibits discrimination based on “an individual’s legal use of consumable products, including cannabis in accordance with state law,” or “an individual’s legal recreational activities, including cannabis in accordance with state law.” N.Y. Lab. Law §201-d(2)(b)-(c).
• Connecticut law prohibits discrimination “because such employee does or does not smoke, vape, aerosolize or otherwise use cannabis products,” unless the employer has “implement[ed] a policy prohibiting the possession, use or other consumption of cannabis by an employee.” Conn. Gen. Stat. Ann. §21a-422p(b)(1)-(2)(A).
• Nevada law prohibits discrimination “because the employee engages in the lawful use in this state of any product … if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” Nev. Rev. Stat. Ann. §613.333(1).
• Rhode Island law prohibits, with a narrow exception, discrimination “solely for an employee’s private, lawful use of cannabis … as long as the employee has not and is not working under the influence of cannabis.” R.I. Gen. Laws §21-28.11-29(d).
• Montana law prohibits discrimination “because the individual legally uses a lawful product,” which the law defines to include marijuana. Mont. Code Ann. §39-2-313(1)-(2).

Notwithstanding these protections, each one of these states permit employers to enforce policies that prohibit an employee from performing work while under the influence of marijuana or from consuming marijuana during working time or on an employer’s property. See N.J. Stat. Ann. §24:6I-52(b)(1)(a); N.Y. Lab. Law §201-d(4-a)(ii); Conn. Gen. Stat. Ann. §21a-422p(a); Nev. Rev. Stat. Ann. §678D.510(1)(a); R.I. Gen. Laws §21-28.11-29(d)-(e); Mont. Code. Ann. §16-12-108(4)(a)-(c). In fact, under some circumstances, employers may have an affirmative obligation to remove workers impaired by marijuana from the workplace in order to ensure a safe working environment for other employees and/or the general public. See, e.g., OSHA Letter to Patrick J. Robinson, Safety Coordinator of Starline Manufacturing Co. (May 2, 1998); Weinstein v. UGS, 2008 WL 1766657 at *4 (E.D. Mich. April 17, 2008); Ianni v. Loram Maintenance of Way, 16 S.W.3d 508, 523 (Tex. Ct. App. 2000).

Marijuana Drug Testing

As a result of the legal framework in these six jurisdictions, employers are permitted and possibly required to take adverse action against employees for on-duty use of marijuana, but prohibited from taking adverse action against employees for protected off-duty recreational use of marijuana. The difficulty for employers arises from distinguishing between the two scenarios.

Some commentators have contended that unlike an alcohol breathalyzer test, current marijuana drug testing technology cannot confirm that a person is under the influence of marijuana at the time of the test. Instead, various toxicology labs indicate that their tests can only confirm whether the individual has used marijuana in the past, without specifying exactly how far in advance of the testing such use occurred. Based on these limitations, employers can expect employees in the six jurisdictions identified here to argue that a positive drug test is an unreliable indicator of current impairment.

For instance, New Jersey law is explicit that “an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” While employers may require a “drug test” under a number of circumstances, the “drug test” must also include “a physical evaluation in order to determine an employee’s state of impairment.” The physical evaluation must be performed by a “Workplace Impairment Recognition Expert,” who has been certified by the New Jersey Cannabis Commission as having received “education and training in detecting and identifying an employee’s usage of, or impairment from, a cannabis item.” N.J. Stat. Ann. §24:6I-52(b)(1)(a)-(b).

New York law states that an employee’s workplace impairment must be measured by the employee “manifest[ing] specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position,” or “specific articulable symptoms [that] interfere[] with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards.” N.Y. Lab. Law §201-d(4-a)(ii).

Under Connecticut law, to the extent an employer does not meet certain disclosure requirements regarding its drug policies, it may still “maintain a drug and alcohol-free workplace” by taking adverse action against an employee who “manifests specific articulable symptoms of drug impairment while working at the workplace or on call that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position” or when the employer has a “reasonable suspicion of an employee’s usage of cannabis while engaged in the performance of the employee’s work responsibilities at the workplace or on call.” Conn. Gen. Stat. Ann. §21a-422p(c).

Nevada law provides that, with only a few exceptions, “[i]t is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” Nev. Rev. Stat. Ann. §613.132(1)-(2). In addition, Nevada law permits adverse action on the basis of marijuana use solely to the extent that such use “adversely affect[s] the employee’s ability to perform his or her job or the safety of other employees.” Nev. Rev. Stat. Ann. §613.333(1).

Rhode Island law provides that “a person shall not be considered to be under the influence solely for having cannabis metabolites in his or her system.” R.I. Gen. Laws §21-28.11-29(a)(3).

Finally, Montana law permits adverse action on the basis of marijuana use solely to the extent that such use “affects in any manner an individual’s ability to perform job-related employment responsibilities or the safety of other employees” or “conflicts with a bona fide occupational qualification that is reasonably related to the individual’s employment.” Mont. Code Ann. §39-2-313(3).

Practical Considerations

Employers in these states can expect their employees to argue that failed drug tests alone are an inadequate basis for discipline or termination of employment. In an effort to minimize the risk of liability, employers in the six states referenced above may want to consider taking the following actions:

• Revising their employee handbooks and other policies to ensure these materials align with applicable laws concerning recreational marijuana use, drug testing, and the use of the results of any drug test. Employers should ensure that these policies are distributed to all employees, preferably with the employees signing or acknowledging the policies.

• Carefully documenting the physical evidence of marijuana use or impairment in instances where an employer suspects an employee may have used or been impaired by marijuana while on the employer’s premises and/or during working hours.

• Arranging for one or more employees to receive training and certification as a “Workplace Impairment Recognition Expert” to enhance the evidence of impairment by an employee suspected of using or being impaired by marijuana while on the employer’s premises and/or during working hours. While this step is required under New Jersey law, employers in the other five states may benefit from this measure as well.

• Monitoring technological developments in the marijuana impairment testing market for well-supported and well-established inventions that reliably detect current impairment.

• Closely following federal and state legislation along with local regulations in this area and consulting with outside counsel to the extent necessary to respond to any changes.

With these steps, employers in the six states referenced above can reduce the risk of liability and enhance the safety and productivity of their entire workforces.

Reprinted with permission from the October 4, 2022 edition of the NEW YORK LAW JOURNAL © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - reprints@alm.com