Laws regarding marijuana continue to expand across the U.S.

Employers may wonder what that means for creating and enforcing safety protocols and policies, especially in light of the recent passage of recreational marijuana laws in Minnesota, Ohio and elsewhere.

At the same time, there are also employment law protections to note in certain states.

Still, despite the legality of recreational marijuana in many states (24, plus Washington, D.C., as of this writing), employers can enforce a drug-free workplace. And the federal government still classifies marijuana as a Schedule I or illegal drug.

Navigating federal and state laws

An employer’s legal safety and impairment policy options may depend on the type of operations they perform, as well as their relationship with the federal government.

"Employers can prohibit use, possession, and impairment from marijuana products during work hours, on work premises, or while operating the company's vehicle, machinery, or equipment," said LSH Senior Defense Counsel Aaron Schmidt. "Employers can also take action if failing to do so would violate federal or state law or regulations or cause the loss of federal money or licensing-related benefits."

Some states are creating employee protections for off-duty use, but they generally don’t apply to safety-sensitive positions or government contractors.

The variation and inconsistency in laws regarding medical and recreational marijuana use in the workplace make it particularly difficult for employers operating in multiple states to establish company-wide policies and practices. Therefore, it's best for employers to consult an employment law or business attorney in their jurisdiction.

Tips to create and enforce safety programs and policies

The changing legal status of marijuana in the U.S. provides a great opportunity to refresh your safety program and workplace policies.

These four actions are a good starting point:

• Understand the law
  If a state you operate within has legalized marijuana, whether medical and/or recreational, you must take the time to understand how federal and state laws affect your operation.
• Revisit job descriptions
  Regularly revisit your job descriptions to see if they are reflecting the current equipment you have, any technologies you’re using and the scope of the jobs that may intersect with a position. Make changes, if needed, to reflect the reality of the workplace so you can hire the best candidates for the job, and then provide the training they need to perform the job safely.
• Be fair and consistent with all employees
  If you declare your workplace drug-free, you need to apply that standard across the board, taking into consideration legal limitations on any blanket policy.
• Document violations
  As impairment and legality come into question, the most important thing to come back to is the safety of the workplace. If someone is practicing unsafe behavior, regardless of any drug use, you should act on it. No matter the cause of or legality of the substance causing the impairment, you can address safety concerns, and it’s important that you do. You may need to address that behavior separately from the substance that may be contributing to it.

The growing acceptance of marijuana use in the U.S. has forced lawmakers and employers to address its use and adapt. Seek legal counsel when implementing workplace policies that may impact marijuana users due to the quickly changing legal landscape.

You can find a state-by-state summary with references to governing statutes at nolo.com .

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

Originally posted August 2023