Federal law prohibits marijuana use. Despite this, over the last few years, many states have legalized marijuana use for both medicinal and recreational purposes. North Carolina has not passed legislation legalizing marijuana use, but the fact that marijuana use is permitted in many other states can pose challenges for North Carolina employers. All employers, particularly multistate employers, should pay close attention to the evolving laws regarding marijuana and modify their workplace policies as necessary to account for the continuing legalization of marijuana.

Overview of Marijuana Legislation

Twenty-nine states currently permit marijuana use for medicinal purposes. Of those 29, nine states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington) and the District of Columbia also permit at least some recreational use. New Jersey and Rhode Island are both expected to consider allowing recreational marijuana use this year.

Significantly, none of the marijuana laws passed to date grant employees the right to use, or be under the influence of, marijuana in the workplace. So, even in states that allow marijuana use, employers are not required to tolerate on-the-job impairment.

None of the current laws provide employment-related protections for employees or applicants who use marijuana recreationally. In those jurisdictions in which recreational use is permitted, an employer does not have to treat a recreational marijuana user any differently than a non-user. In contrast, 12 states provide limited employment-related protections for employees and applicants who use marijuana for medicinal purposes. In these states, employees and applicants may have legitimate claims under state disability or marijuana laws if the employer or potential employer takes an adverse action against the employee or applicant due to lawful, medicinal marijuana use.

Despite the increasing amount of state-level legislation, federal law still prohibits marijuana use. For example, employees in safety-sensitive positions subject to the Department of Transportation’s (“DOT”) drug and alcohol testing requirements may not use marijuana, irrespective of what state law may allow. The DOT has made clear that its regulated drug testing program does not authorize the use of Schedule 1 drugs, including marijuana, for any reason, regardless of whether the marijuana use is permitted by state law.

Implications for Employers

Employers based in states that have not legalized marijuana use, such as North Carolina, would be wise to take the evolving laws regarding marijuana use into consideration as they draft or revise their workplace policies. A North Carolina employer may want to include a statement in its drug use policy that explains that, even though an employee may legally use marijuana while visiting a marijuana-friendly state, the North Carolina employer may discipline the employee upon a positive drug test.

Unless the employer is covered by a federal law that requires otherwise (such as a government contractor subject to the Drug-Free Workplace Act), a cautious multistate employer might reconsider implementing across-the-board zero-tolerance drug policies. Employers in marijuana-friendly states must treat employees who lawfully use medicinal marijuana the same way they would treat any employee’s lawful use of another medicine.

Multistate employers should be aware that certain states impose a duty to accommodate marijuana use for valid cardholders (individuals who have been qualified under applicable state law to use marijuana to treat medical issues). Lawful, off-site use of medically-prescribed marijuana has been determined to be a facially reasonable accommodation under the Americans with Disabilities Act and state disability laws.

Employers in marijuana-friendly states should not immediately exclude job applicants upon becoming aware of an applicant’s marijuana use, such as if the applicant admits to using marijuana during the application process or if a pre-employment drug screen indicates use of the drug. Employers have been found to be in violation of applicable state disability law if they withdraw an offer of employment to an applicant who discloses his or her medical marijuana cardholder status in the course of the application process.

Employers may need to modify their drug testing policies to take into account legal, off-duty use of marijuana. The presence of THC (the active ingredient in marijuana) in an employee’s blood, urine, or hair may not indicate that the employee is currently impaired. THC can be detected for several days, or even weeks, after use.

Reconciling the varying state laws on recreational and medicinal marijuana use can be extremely difficult. States that allow marijuana use may have differing requirements on permitted uses, lawful drug testing, and duties to accommodate. A cautious approach is for the multistate employer to address the issue with state-specific workplace drug policies.