Please note that marijuana (a.k.a. cannabis) and employment protections is a rapidly changing area of law and one where answers to many questions will not exist until a court case has been tried on the precise issue. We will do our best to keep the information below current, but much of this law is being made through the court systems, and not all court decisions are widely reported (or reported at all).

If you are planning to take a hard line with an employee, particularly one whom you believe to use cannabis for medical purposes, it’s best to consult with one of our HR Consultants or an employment attorney who practices in your state.

Unless specifically mentioned below, here are few things to keep in mind about all cannabis laws:

  1. No employer needs to tolerate an employee using cannabis on the job.

  2. No employer needs to tolerate an employee being impaired on the job (as might result from smoking before work or during breaks).

  3. Where the information below says that medical use must be “accommodated,” it means an employer will have to ignore the fact that someone uses cannabis off-duty for medical purposes, could use cannabis off-duty for medical purposes, or has a positive drug test result for THC. It does not mean they have to accommodate on-duty use or allow an employee to be high on the job.

  4. The only states that restrict an employer’s ability to discipline for off-duty recreational use are Maine, Nevada (as of 1-1-20), and Illinois (as of 1-1-20).

This list includes the types of cannabis use that are legal by state and whether there are any explicit protections for employees related to use. If the THC content is low enough, it’s possible an employee might not test positive for cannabis.

Alaska: Medical and recreational use. Employers have no obligation to accommodate medical use in the workplace. The state hasn’t stated whether employers need to accommodate off-duty medical use.

Alabama: No legal use, except children with seizures as part of a clinical research study.

Arizona: Medical use only. Employers must accommodate medical use, except if they would lose federal funding or a federal license; if the employee is impaired during work or at their worksite; or for safety-sensitive positions (if their policy complies with certain requirements). Employers may not rely on a positive test result by itself to prove current impairment.

Arkansas: Medical use only. Employers must accommodate medical use, except as needed to comply with a testing program required by state or federal law; if the employee used, possessed, or is under the influence at work; or for safety-sensitive positions that are designated in writing as safety sensitive.

California: Medical and recreational use. Employers have no obligation to accommodate medical use.

Colorado: Medical and recreational use. Employers have no obligation to accommodate medical use.

Connecticut: Medical use only. Employers must accommodate off-duty medical use, unless testing is required by a federal law or required to obtain federal funding.

Delaware: Medical use only. Employers must accommodate off-duty medical use, unless they would lose a federal license or federal money. Employers may not rely on a positive test result by itself to prove current impairment.

District of Columbia: Medical and recreational use. The District specifically requires public employers to accommodate employees who use medical cannabis off-duty but does not address private employers. Employers do not need to allow employees to use or have cannabis at work.

Florida: Medical use only. The state hasn’t stated whether employers need to accommodate off-duty medical use. At least one case has been filed to clarify the law.

Georgia: Medical use of low THC cannabis oil only. Employers may discipline for off-duty use.

Hawaii: Medical use only. Employers have no obligation to accommodate medical use at work. The state has not specifically said whether employers need to accommodate off-duty medical use.

Idaho: No legal use

Illinois: Currently, medical use only. Employers must accommodate off-duty medical use, unless doing so would violate federal law or cause the employer to lose federal money or a federal license. Legal recreational use, with employment protections, as of January 1, 2020. Exceptions to employment protections for recreational cannabis are on-duty use or impairment (which requires specific, articulable symptoms and an opportunity to contest the employer’s determination of impairment before disciplining the employee); federal, state, or local employment restrictions on the employer’s obligations; and if the employer would lose a federal or state contract or funding.

Indiana: Medical use of low THC cannabis oil only. The state has not specifically said whether employers need to accommodate off-duty use.

Iowa: Medical use of low THC cannabis oil only. State law protects employers from lawsuits regarding medical cannabis if their drug policy and testing program comply with the state’s requirements for drug testing.

Kansas: No legal use, except for CBD oil that has no THC.

Kentucky: No legal use, except for clinical trials of CBD oil.

Louisiana: Medical use only. The state has not specifically said whether employers are required to accommodate off-duty medical use.

Maine: Medical and recreational. Employers must accommodate medical use. Additionally, Maine specifically protects off-duty recreational use, meaning an employer may not discriminate or take any adverse action against an applicant or employee who is at least 21 years old because of marijuana use or a positive drug test. Employers do not have to allow on-duty use or impairment but cannot rely solely on a positive drug test to confirm on-duty use or impairment.

Maryland: Medical use only. The medical cannabis law is silent regarding employment protections, but the Maryland Medical Cannabis Commissions has said that employers have no obligation to accommodate medical use.

Massachusetts: Medical and recreational. Employers must accommodate off-duty medical use, unless they can show undue hardship.

Michigan: Medical and recreational. Employers are not required to accommodate off-duty medical use.

Minnesota: Medical use only. Employers must accommodate off-duty medical use, unless they would violate federal law or lose federal money or a federal license.

Mississippi: No legal use, except for CBD oil that has very low THC.

Missouri: Medical use only. The state has not specifically said whether employers are required to accommodate medical use.

Montana: Medical use only. Employers have no obligation to accommodate medical use.

Nebraska: No legal use.

Nevada: Medical and recreational. Employers are required to attempt to accommodate off-duty medical use; exceptions include undue hardship, a threat to property or people, and if the employee cannot perform their job. For recreational use, as of January 1, 2020, employers may not refuse to hire someone based on a pre-employment drug test that is positive for THC. This protection does not apply to firefighters, EMTs, drivers subject to testing under state or federal law, and safety-sensitive positions. In addition, employees who test positive for THC within the first 30 days of employment must be allowed to take a second test. (The employer can require the employee to pay for the second test.)

New Hampshire: Medical use only. The state has not said whether employers are required to accommodate off-duty medical use. Employers do not need to allow employees to use cannabis during or at work or to be under the influence of cannabis at work.

New Jersey: Medical use only. Employers may not discriminate against an applicant or employee based solely on their status as a medical cannabis cardholder. If an applicant or employee tests positive for THC, the employer must provide them written notice of their right to present a legitimate medical explanation for the positive test result or request a retest of the original sample at the applicant’s or employee’s own expense. The applicant or employee then has three working days to provide their health care practitioner’s authorization for medical cannabis or a registry identification card. Exceptions to these employment protections are if the employee uses or possesses cannabis during work, if the employer would violate federal law, or if the employer would lose a federal license, a federal contract, or federal funding.

New Mexico: Medical use only. Employers may not discriminate against an applicant or employee who is using cannabis outside of work  in accordance with the state’s medical cannabis law, except for safety-sensitive positions or if the employer would lose federal funding or a federal license.

New York: Medical use only. Employers must accommodate medical use unless they would lose a federal contract or funding, the employee was impaired during work, it would cause an undue hardship, or the employee would not be able to perform their job duties with the accommodation. As of May 10, 2020, employers in New York City may not conduct preemployment drug testing for THC.

North Carolina: No legal use, except for hemp extract with low THC levels for patients with epilepsy.

North Dakota: Medical use only. The state has not said whether employers are required to accommodate off-duty medical use. Employers do not need to allow employees to have or use cannabis at work or to be under the influence of cannabis during work.

Ohio: Medical use only. Employers have no obligation to accommodate medical use.

Oklahoma: Medical use only. Employers may not discriminate against an applicant or employee solely on the basis of their status as a medical marijuana cardholder. Employers may not refuse to hire an applicant or discipline an employee based solely on a positive drug test unless the applicant or employee doesn’t have a valid medical cannabis license; the employee has, uses, or is under the influence of marijuana at or during work; or the position is safety sensitive. In addition, Oklahoma law does not limit an employer’s ability to comply with federal law or obtain federal funding.

Oregon: Medical and recreational use. Employers have no obligation to accommodate medical use.

Pennsylvania: Medical use only. Employers must accommodate medical use. The statute says that 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 for that position.” This suggests that an employer who knows that an employer has used marijuana shortly before work or during a break would only be able to discipline them if their performance falls below what is normally expected of them.

Rhode Island: Medical use only. Employers may not discriminate against an applicant or employees solely on the basis of their status as a medical marijuana cardholder. Discipline is allowed when an employee uses, has, or is under the influence of marijuana at work; when the employee is performing work under the influence of marijuana that constitutes negligence or professional malpractice or would jeopardize workplace safety; when an employee is under the influence while operating a vehicle, machinery, equipment, or a firearm; or if the failure to discipline an employee would make the employer lose federal funding or a federal license.

South Carolina: No legal use, except for CBD oil for children with severe epilepsy.

South Dakota: No legal use.

Tennessee: No legal use, except for low-THC oil for certain patients.

Texas: No legal use, except for low-THC extracts for certain patients.

Utah: Medical use only. The law is unclear as to whether employers have to accommodate off-duty medical use.

Vermont: Medical and recreational. Employers are generally required to accommodate off-duty medical use.

Virginia: Medical use only. The state has not specifically said whether employers are required to accommodate off-duty use.

Washington: Medical and recreational. Employers have no obligation to accommodate medical use.

West Virginia: Medical use only. Employers may not discriminate based on the fact that someone has is a medical marijuana cardholder. The state has not specifically said whether employers are required to accommodate off-duty medical use, but it’s possible that they may have to under the state’s disability discrimination law. Employers may prohibit use and possession at work and may prohibit employees from working under the influence “when the employee’s conduct falls below the standard of care normally accepted for that position.” This suggests that an employer who knows that an employer has used marijuana shortly before work or during a break would only be able to discipline them if their performance falls below what is normally expected of them. Employers are not required to do anything that would violate federal law.

Wisconsin: Extremely limited medical use.

Wyoming: No legal use, except for CBD oil to treat seizures.

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