Right-to-Weed States: Assessing Impairment and Managing Employee Conduct in the Workplace

On May 9, 2023, the Washington state governor signed a law that will make it unlawful for employers to discriminate against hiring a person based on their marijuana usage, making Washington the latest state to become a right-to-weed state. With medical and recreational marijuana legalization spreading, a growing number of states are further implementing protections for employees who lawfully use marijuana or cannabis.

These developments continue to create challenges for employers seeking to enforce drug-testing and drug-free workplace policies. Moreover, even in right-to-weed states that have enacted employment protections for lawful and off-duty marijuana use, employers are not required to permit employees to use marijuana in the workplace or to work while impaired by or under the influence of marijuana or other drugs. Here are some key points on the ways in which employers, even in right-to-weed states, can regulate marijuana usage and maintain drug-free workplaces.

Quick Hits

• Employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana.
• Employers may be required to reasonably accommodate medical marijuana users, but that does not mean employers must permit users to be impaired while working.
• Supervisors and managers can be trained to recognize the signs of marijuana impairment.

Impairment Is Still Prohibited

While the Americans with Disabilities Act and most state counterpart laws do not require employers to accommodate illegal drug use, employers may have to engage in the interactive process to determine whether a reasonable accommodation can be made for an employee’s off-duty marijuana use if the employee is disabled. Still, employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana, just like with alcohol.

Medical Marijuana Cards Are Not Prescriptions

Generally, employers may not discriminate against individuals with a medical marijuana identification card because they: (i) possess the card, (ii) use medical marijuana off the employer’s premises during nonworking hours, or (iii) test positive for marijuana, unless there is evidence that the employees used or possessed marijuana while working or that the employees’ lawful off-duty use affects the employees’ ability to perform their jobs, affects the safety of others on the job, or conflicts with an occupational qualification reasonably related to the job. In other words, employees—including authorized medical marijuana users—may be prohibited (lawfully) from working while “under the influence” of marijuana by some employers.

Medical marijuana cards do not give employees permission to use marijuana on the job. In most states, medical marijuana authorization cards only entitle holders to purchase marijuana to treat a condition. They are not prescriptions that mandate dosages or frequency as prescriptions do with other drugs. Thus, to understand how to manage situations in which employees hold medical marijuana cards, employers may need to engage in the interactive process with these employees to determine whether they can reasonably accommodate the marijuana usage. But, again, reasonably accommodate does not mean employers must permit medical marijuana users to be “under the influence” while working.

Training Employees to Spot Impairment Is Key

Unlike alcohol, there is no standard test for marijuana that can prove current impairment. Marijuana users are typically “under the influence” between two and ten hours after usage, but some studies have shown impairment can last for twenty-four or more hours. But, even after the user is no longer under the influence, they can test positive for marijuana for weeks or longer. That said, employees may exhibit visual signs of impairment associated with being under the influence of marijuana—which differ from the signs of alcohol intoxication. Supervisors and managers can be trained to recognize when an employee may be under the influence of marijuana. Some states allow employers to designate a workplace impairment recognition expert (WIRE) who obtains specialized training to identify when an individual is impaired by marijuana,

It may be more difficult to visually observe when employees working remotely are impaired, but if there is reason to believe that an employee was impaired on the job because co-workers or customers who interacted with the employee reported it, that report itself can be evidence to show that the employee was impaired.

Next Steps

Employers may want to audit existing policies and procedures to confirm compliance with the changing landscape around marijuana usage. Employers may further want to consider training supervisors and managers to recognize the signs that employees are under the influence of marijuana, alcohol, or other drugs.

This article is based on a May 2023 presentation by Ogletree Deakins shareholders Aimee B. Parsons and Burton D. Garland, Jr. at the firm’s 2023 National Workplace Strategies Seminar in San Diego.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments in marijuana laws and will provide updates on the Drug Testing and Leaves of Absence blogs as additional information becomes available.

Follow and Subscribe                                                                                                                    LinkedIn | Twitter | Webinars | Podcasts