Legalized Recreational Marijuana Use: How Does It Affect Employers? – JD Supra

New Jersey, New York and New Mexico recently legalized recreational marijuana use for adults, adding to the many states (Washington, California, Nevada, Maine, and Massachusetts, to name a few) that have already done so. But what does this mean for employers? Can employees consume marijuana during work hours? Can they be under the influence at work? Can companies still drug test employees?

Below we discuss recreational marijuana use laws and their impact on certain workplace practices and policies. Please note that employees’ medical use of cannabis may present different issues outside the scope of this article.

Workplace Drug Free Policies are Generally Still Permitted

While the states’ adult recreational marijuana laws differ in various aspects (e.g., permitted use and/or amount of possession, etc.), they generally do not interfere with an employer’s right to restrict the possession, use or consumption of cannabis at its workplace, and allow employers to prohibit employees from working while being impaired. For instance, Illinois employers are expressly allowed to adopt a reasonable zero tolerance or drug free workplace policies and may take adverse actions (e.g., discipline or discharge) against an employee for violating these policies. New Jersey’s Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (NJCREAMM) similarly does not affect the ability of employers to have policies prohibiting use of cannabis during work hours. Under New York’s new Marijuana Regulation and Taxation Act (the “MRT Act”), which, among other things, modifies the state’s off-duty conduct law to protect an employee’s off-duty use of cannabis, employers are still allowed to restrict marijuana use and possession during work hours, on an employer’s premises and while using an employer’s equipment or other property.

Challenges Remain in Detecting Who May be Under the Influence on the Job

A key issue under recreational marijuana use laws for employers, however, is how to

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