Thirty-three states and the District of Columbia have now legalized/decriminalized the use of cannabis for recreational or medicinal use. Employers should verify that their workplace drug policies contemplate new and changing prescription drug laws. Counsel should inform clients of potential interactions between an employment policy on workers' use of such substances and ADA, FMLA, or other legal requirements.

During the first wave of employment cases concerning cannabis use since legalization began, the courts tended to side with employers. Both California and Colorado courts ruled that employers were within their rights to terminate employees who tested positive or used marijuana in violation of a company policy of a "drug-free workplace" or "zero tolerance." The tide has turned in several states, including Arizona and Delaware, where state supreme courts have ruled that employers had wrongfully terminated employees who were registered medical cannabis users under state laws, but failed workplace drug tests.

Employers should consider whether asking job applicants to submit to drug testing during the hiring process is appropriate and decide whether a candidate's positive cannabis test result is a reasonable bar to employment. An employer may apply a higher level of scrutiny on drug use by candidates for safety-sensitive positions and bar impaired employees from work due to legal or illegal substance abuse. Still, employers must transparently and consistently enforce those policies.

Additionally, employers must be aware of the limitations of cannabis testing. While breathalyzers can reveal whether a worker is under the influence of alcohol at the time of the test, cannabis tests can only indicate whether the worker has used such substances in the recent days or weeks, which may be legal in the state. If a worker has a valid prescription to use these substances, then employers must navigate particularly tricky situations.

Listen as our expert panel discusses current national trends in medical cannabis and wrongful termination cases, as well as business costs of excluding potential employees for cannabis use. The panel will offer best practices for structuring workplace drug policies that not only optimize a business workforce but maintain compliance with state and federal laws.

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