ILMA Compoundings - April 2021 - 35

of, or impaired by, marijuana in the
workplace or on working time, even if
the employee legally used or consumed cannabis while off duty. Stated
differently, while employees may
have a defense to criminal prosecution, there is no affirmative right to
use medical marijuana against their
employers' policies.
However, some states, like Pennsylvania, permit disciplinary action
only where the worker's use results in
conduct below the standard of care for
his or her position. Moreover, other
states' medical marijuana statutes
prohibit discrimination based solely
on an employee's status as a registered
medical marijuana cardholder or prohibit an employer from terminating an
employee who is a registered medical
marijuana user simply because he
or she is unable to pass a drug test.
Further, courts in Massachusetts, Connecticut, Rhode Island and New Jersey
have held that an employee's off-duty
medical marijuana use is protected
under state medical marijuana statutes
and state laws prohibiting disability
discrimination. In addition, those
jurisdictions that require employers
to accommodate an employee's legal
medical marijuana use typically
exempt those employers who could
lose federal subsidies or benefits or
otherwise violate federal law.
Currently, given the rapidly changing
legal environment in this area, my
recommendation is for employers to
proceed with care before taking adverse
employment action against workers
who are lawful medical marijuana
users, especially where their use occurs
off-premises and outside of working

hours. As in any disciplinary matter,
employers should document their
decision-making. If state law requires
employers to accommodate medical
marijuana users, employers should
engage in the iterative process with the
employee to ensure the medical reason
for taking medical marijuana constitutes a disability and to discuss the
accommodations needed that do not
present a safety hazard to the worker
or others and do not present an undue
hardship on the employer.
EMPLOYEE RECREATIONAL
MARIJUANA USE
The state laws that decriminalize the
recreational use of marijuana by adults
generally provide that employers have
an explicit right to prohibit their
employees from using or being under
the influence of marijuana at work or
during work hours. This prohibition
mirrors employers' ability to enforce
workplace guidelines on alcohol use.
Thus, if an employee is under the
influence of cannabis while at work,
disciplinary action can be taken against
that employee because of safety concerns. Keep in mind that, while most
of the state recreational marijuana laws
generally do not place any restrictions
on an employer's right to administer
drug tests, there are exceptions (e.g.,
New York and Nevada).
However, despite the ability of
employers to prohibit cannabis use
and being under the influence at work,
most of these same state laws do not
allow for adverse action to be brought
against the employee for off-duty marijuana use if it does not negatively affect
his or her work. This is an area most
ripe for employment-related lawsuits.

If your company operates in states
that have decriminalized recreational
marijuana use, I recommend reviewing and updating the company's
drug-use policies and drug-screening
practices. Consider adding to the
policy the consequences for those
employees who display the behaviors
of cannabis intoxication or impairment (including unexplained absences
at or from work), increased accidents
both at home and at work, missed
meetings, poor judgment and bad
decision-making, and inability to
recall details and instructions. Here, I
am trying to keep the employer's focus
on the employee's performance.
UPDATE POLICIES
Even though once demonized, the
shift in societal and legal thinking
on marijuana is clear. However, just
because cannabis use may be allowed,
it does not mean it is 100% acceptable
in the workplace. What an employee
does outside the workplace and on
his or her own time generally is not
the employer's concern. The employer
instead should focus on what it can
control. Employers remain free to ban
marijuana use on the job, just like
alcohol. Moreover, employers have
the latitude to impose workplace rules
and standards, provided they are not
discriminatory. The safety of every
employee at work is paramount, so
consult with local counsel and get
your policies in writing before the
need arises.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

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