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Marijuana in the Office - What Employers Need to Know

As marijuana is becoming increasingly used, medically and recreationally, employers are faced with the question of what their stance is on employees that consume cannabis, and if their workplace policies should be updated. Marijuana legalization can have a lasting effect on employers that enforce a drug-free workplace. Employers can be placed in a difficult situation, trying to avoid disability discrimination lawsuits from employees who use medical marijuana outside of the workspace.

Though marijuana is still illegal under federal law, many states have enacted laws that allow medical or recreational marijuana usage and protect patients from discrimination in employment based on their status as medical marijuana users. The number of states with said shifting laws are increasing. In November 2020, voters in 4 states (New Jersey, South Dakota, Montana, and Arizona) passed laws legalizing recreational marijuana.

While currently illegal in New York, Governor Cuomo vowed to prioritize this conversation and legalization in the new year. Until such time comes, employers in New York should understand that employees and applicants who are registered medical marijuana users are considered to be disabled shielded under the law. By deeming employees As such, these employees will have a stronger standing to sue in the event that they request an accommodation related to their status as a cannabis user and the employer unreasonably denies that request.

For employers that want to adhere to zero-tolerance drug policies, the law:

  • Does not allow employees to consume marijuana at work;

  • Does not protect employees who are impaired from marijuana while on duty;

  • Does not allow federal employees to consume medical marijuana as it is still illegal under federal law and therefore not recognized by the Americans with Disabilities Act.

Employers in states where marijuana is legal (to any extent) should consult experienced employment law counsel before refusing to hire, terminating, or changing any terms or conditions of an employee’s job because of off-duty medical or recreational marijuana use.

If you have any additional questions, please reach out to our designated HR advisor.

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