The majority of states have legalized marijuana to one extent or another. CBD products with limited THC content and medical marijuana remain the most commonly legalized products. 15 states and the District of Columbia have also legalized recreational marijuana (though in one of those 15 states – South Dakota – a judge recently ruled the voter-approved legalization of recreational marijuana to be unconstitutional, so expect continued litigation in this state).
State laws vary widely with respect to the amount of marijuana allowed in possession at any given time, how marijuana can be consumed, conditions that qualify for medical marijuana use, whether employment discrimination is prohibited based on legal use of marijuana, and whether states have reciprocity for medical marijuana cardholders from other states.
Employers are cautioned to approach the issue of marijuana use by their employees carefully. Employees using medical marijuana may be eligible for reasonable accommodation under the ADA, or may otherwise be protected against employment discrimination due to status as a medical marijuana cardholder, and even recreational users may have protection from adverse action in states that prohibit discrimination based on legal off-duty conduct.
We recommend that employers seek tailored legal advice about drugs in the workplace, including whether and how to craft a drug testing policy. myHRcounsel is here to help keep employers compliant in this tricky area of law.