Although marijuana use is still illegal under federal law, at least 33 states allow medical use, and 11 of those states and Washington, DC, also allow recreational use. More states are expected to approve — or attempt to approve — recreational cannabis use in 2020.
A big trend in 2020 involves limits on pre-employment marijuana screening. Some states have laws prohibiting employers from discriminating against workers who use lawful products while they are off duty. Such laws were enacted to protect tobacco users from discrimination.
Likewise, more states are passing laws that prohibit employers from discriminating against employees because they are authorized medical-marijuana patients or caregivers of patients. A reasonable accommodation may not be available for a given job, but employers should make a good-faith effort to find one, such as granting time off or altering shifts while the worker is medicated.
Determining how to proceed if an employee has used medical marijuana varies by state. For example, Alaska, Arizona, Delaware and Minnesota state laws also prohibit employment discrimination against qualified medical-marijuana users. However, in other states a positive drug test may be sufficient to bar an employee from working in safety-sensitive positions. Although marijuana use is not covered by the federal Americans with Disabilities Act, employees may be able to bring state-law discrimination claims.
Federal contractors, drivers and workers in other safety-sensitive positions may be subject to drug-free workplace laws, whereas general office workers may not.