December 19, 2023 Written by Christopher Leddy, Esq. and David Frankel, Esq.
The unstoppable trend of marijuana legalization throughout the United States presents novel and unanticipated issues for employers. Although marijuana use will likely remain federally illegal for the foreseeable future, states often protect employees from adverse employment actions for off-duty and off-premises use. Employers should be aware of these protections to avoid unanticipated penalties.
Effective as of January 1, 2024, California Assembly Bill 2188 prohibits employers from discriminating against an employee in any term or condition of employment based on:
an employee’s cannabis use off the job and away from the workplace, or
an employer-required drug test that finds non-psychoactive cannabis metabolites in a person’s hair, blood, urine, or other bodily fluids (i.e., an employer cannot discriminate for past cannabis use where the employee is no longer under the influence of psychoactive chemicals from such use)
These employer restrictions do not:
apply to employees in the building and construction trades or to applicants or employees hired for positions that require a federal government background investigation or security clearance;
affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace; or
preempt state or federal laws requiring applicants or employees to be tested for controlled substances.
Employers can still prohibit employees from possessing, being impaired by, or using cannabis on the job.
New York Labor Law § 201-d prohibits discrimination against employees for the use of cannabis in accordance with state law, outside work hours, off of the employer's premises and without use of the employer's equipment or other property. The law provides the following exceptions for employers:
the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.
In addition, New York State provides an Adult Use Cannabis and the Workplace guide, which provides a list of frequently asked questions on the topic.
N.J. Stat. § 24:6I-52 prohibits employers from taking any adverse employment actions against an employee based on whether an employee does or does not smoke, vape, aerosolize or otherwise use cannabis items. An employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act.
Employers may still maintain drug- and alcohol-free workplace policies, and employers are not required to permit or accommodate the use, consumption, being under the influence, possession, transfer, display, transportation, sale or growth of cannabis or cannabis items in the workplace.
Under 820 ILCS 55/5, Illinois also protects employees from adverse employment actions for the use of marijuana during nonworking and non-call hours, but employers may prohibit employees from being under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call. 410 ILCS 705/10-50. Employers may also discipline or terminate employees for violating the employer’s employment policies or workplace drug policy.
Employers may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of duties or tasks of the employee’s job position. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
Recreational marijuana use is not legal in Pennsylvania but, under 35 Pa. Stat. § 10231.2103, employers cannot discriminate against an employee solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.
Employers are not required to accommodate the use of medical marijuana on the property or premises of any place of employment. An employer may discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted in that position.
Additionally, Philadelphia employers cannot generally require a prospective employee to submit to marijuana testing as a condition of employment.
More states are likely to implement protections for recreational marijuana users, and employers should monitor state laws to ensure compliance. For further guidance, please feel free to reach out to the Staffing Team at Becker LLC: