After July 1, a whiff of weed in the air means a Marylander is taking advantage of the new state law legalizing recreational marijuana. It also means potential issues for employers when it comes to how they handle off-duty marijuana use and the use and possession of marijuana in the workplace.

About the New Law

On November 8, 2022, Marylanders decisively voted to legalize recreational marijuana for adults 21 and over.  In response, the Maryland legislature passed a bill, which was signed by the governor on May 3 to provide for the sale of recreational marijuana in Maryland.

The new legal framework, which will go into effect on July 1 of this year (2023) will allow for the use and possession of up to 1.5 ounces of marijuana in Maryland.  Possession of larger qualities of marijuana will still be prohibited (possession of more than 1.5 ounces but less than 2.5 ounces will be punishable by a civil fine of up to $250 and possession of more than 2.5 ounces will be punishable by a fine of up to $1,000 or six months in jail). 

Maryland employers are well advised to take note of the new law and assess their policies to prepare for any necessary changes.

Approaching Off-Duty Marijuana Use

First and foremost, Maryland employers should give thought to how they want to approach the issue of off-duty recreational marijuana use by employees.

Unlike some of the other jurisdictions that have legalized recreational marijuana, Maryland does not currently have any laws pertaining to lawful off-duty conduct generally, or off-duty marijuana use specifically.  For example, last June, DC passed a new law prohibiting employers from taking adverse action against employees for off-duty marijuana use. Other states have more general laws prohibiting employers from taking action based on any lawful off-duty conduct by employees. 

As the new law goes into effect, the Maryland legislature may look to enact laws that would limit what actions an employer can take related to an employee’s off duty recreational marijuana use.  As, at this point, it looks like no such action will occur before the law goes into effect, employers will still want to consider how policies like pre-employment drug testing that includes marijuana or policies prohibiting employees from engaging in off-duty marijuana use will impact their recruitment and retention.

Reexamining (or Creating) a Policy on Drugs in the Workplace

This is also be a good opportunity for Maryland employers to review their policies relating to the use and possession of drugs in the workplace (or implement policies if they have not done so already). 

Though employees will be lawfully permitted to use marijuana outside of work, employers can still prohibit employees from being impaired or using or possessing marijuana at work.  Since this will be a new issue for employees, policies should specifically address recreational marijuana use to ensure that that the employer’s policies and expectations are clear.