Legalized Marijuana: Can Employers Fire for Impairment?

Can a company create a drug-free work policy in a state that allows recreational marijuana use? What about registered medical marijuana users?



Let’s say your company is located in a state that allows recreational marijuana use, but you want to maintain a drug-free workplace policy. What are your legal rights as an employer?

Here’s a quick rundown of several questions we’ve been asked.

Can a company create a drug-free work policy in a state that allows recreational marijuana use?

Yes. Just because your state permits recreational marijuana does not mean employees should be impaired at work.

More and more states have legalized recreational marijuana and each has regulations for using marijuana in public, where it can be purchased, and how much can be grown at home. None of those states require employers to allow on-the-job use.

Think of it similarly to alcohol: while it is legal to purchase and use under certain circumstances, it is not appropriate to be under the influence at work and could involve disciplinary action for violations.

Can an employee who is a registered medical marijuana user with a medical card use marijuana at work?

It depends. Because medicinal marijuana is not legal in every state, there is no federal stance on this and laws vary state by state.

In Massachusetts and New York, for example, medical marijuana users are protected when using it to treat a disability. Employers must make reasonable accommodations. And California bill AB 2188 allows certain employees to have trace amounts of nonpsychoactive cannabis metabolites in their system (medical card user or not), so long as they are not impaired.

Since marijuana laws will continue to evolve, expect changes to come.

We have a zero-tolerance policy at work. Should I terminate an employee who is a registered medical marijuana user?

No. Even with a zero-tolerance drug-use policy, firing an employee solely based on their registration status could lead to further legal problems.

Instead, work with the employee to see if suitable accommodations can be made. Think of it similarly to an employee on prescription opioids and be cautious to not assign the person any work that could be hazardous to them or their coworkers.

Remember, however, that this is only for registered medical marijuana users and not for employees using marijuana recreationally. States that allow recreational marijuana use may have individual laws and regulations that protect the employee's choices, so long as they do not create a hazard. Contact your certified HR expert for more details.

At the end of the day, performance standards must still be met, impairment must not be a problem at work, and smoking marijuana, even with a registered medical marijuana card, may still be prohibited at the worksite.

What other advice do you have for employers in states that have legalized some forms of marijuana?

Create a company policy and communicate it to your team clearly and regularly. As long as your company consistently prohibits and enforces impairment by marijuana (or any other drugs), you reserve the right to terminate an employee.

Be aware, however, that more and more states are developing laws surrounding recreational marijuana use. For example, Washington State passed a law (effective January of 2024) that makes it illegal to discriminate against job applicants who test positive for "non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids." Contact your certified HR expert for laws applicable to your company.

Also, train your managers on how to identify impairment and how to deal with on-the-job use or impairment. If you have a situation where an employee seeks accommodation as a prescribed medical marijuana user, check with your legal counsel to determine what’s required in your state.

Ensure your HR and legal teams are aware of any future changes to the law, in case those affect your company’s policy.

Who can I ask about our workplace marijuana situation?

As medical and recreational marijuana laws continue to be legalized from state to state, employment laws regarding its usage will evolve. For help with your specific situation, please contact your certified HR expert.

If you are not a current Stratus HR client, please book a free consultation and our team will contact you shortly. 

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