As the trend to legalize cannabis use continues, employers should note that some state and local laws now protect workers who consume recreational marijuana while off duty.
Multistate employers are likely familiar with laws that provide job protections for registered medical marijuana patients who use cannabis in accordance with a comprehensive medical program—but they may need to update their drug-testing policies to account for laws that protect recreational use as well.
Compliance is particularly complicated for multistate employers because marijuana laws are not the same in every state. “In some states, it is acceptable for employers to take adverse employment actions due to recreational marijuana use, but in other states, it is not,” explained Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.
Currently, at least 16 states and Washington, D.C., have recreational marijuana laws. Many other states are considering such laws and likely will enact them in the near future, Russo said, noting that Congress is also considering legislation to legalize marijuana at the federal level. “The clear trend is that eventually marijuana is going to become a legal substance throughout the country.”
Here’s what employers need to know about the changing landscape of recreational marijuana laws and what it means for their policies.
Workplace Protections Vary
Many of the earlier states to legalize adult cannabis use, such as Colorado, provide few or no job protections for off-duty use. For example, Colorado has a statute prohibiting employers from interfering with employees’ lawful off-duty conduct, but the Colorado high court has said that “lawful activity” is defined by both state and federal law.
“Because cannabis remains illegal under federal law, cannabis use outside of work is not a protected activity under the statute,” said Rachel Gillette, an attorney with Greenspoon Marder in Denver. Lawmakers have considered amending the statute to include an employee’s legal, off-the-job