Cannabis and Employment: Medical and Recreational Policies in the States
Most states that have legalized medical or recreational cannabis leave testing and decisions made thereafter up to the individual employer’s discretion. A handful of states have policies in place that somehow address anti-discrimination for medical cannabis patients. Significantly fewer states require employers to carve out accommodations for these patients.
The following table includes states that have some kind of statutory language requiring employers to not refuse employment or otherwise discriminate against a qualifying medical cannabis patient (or medical cannabis “cardholder” in some states).
For the most part, as long as employees aren’t bringing their medical cannabis to work, aren’t working in a job where impairment may result in serious harm to others and aren’t working in a federally related job, employers can’t take medical cannabis use or positive drug test results into consideration when making hiring and firing decisions.
As displayed in the above table, most states do not require any special workplace accommodations for medical cannabis patients and leave policies relating to cannabis use and subsequent disciplinary actions up to individual employers. Nevada notably deviates from this trend. While the state doesn’t require an employer to modify the job or working conditions of an employee who is a medical cannabis patient, it does require an employer to attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of cannabis provided such an accommodation would not pose a threat of harm or danger to persons or property, impose undue hardship on the employer or prohibit the employee from fulfilling any and all of their job responsibilities.
Nevada also passed AB 132 in 2019, which now allows for employment protections for recreational users as well, becoming the first state in the nation with such a provision on the books.
In 2016, Maine voters passed an initiative permitting the recreational use, retail sale and taxation of cannabis by popular vote. The initiative included an employment anti-discrimination provision for recreational users as well. Maine’s General Assembly repealed this statute through legislation in 2017.
Legislation Recently Considered in the States
Legislators continue to consider what language needs to be included in state policies to help employers adapt to changing cannabis laws. Wisconsin is considering AB 220 which would legalize recreational cannabis and includes employment protections for the lawful use of cannabis.
New Jersey is considering several bills related to medical cannabis in general and most contain some employment protections for patients. AB 20 has passed both houses and would prohibit employer discrimination against individuals who are medical cannabis patients. AB 10 is currently being resolved on concurrence and would, similarly, require employers to present evidence that an employee’s use of medical cannabis outside of working hours somehow impaired that individual or interfered with their ability to do their job before being able to take any disciplinary actions.
Finally, in 2019, Massachusetts is considering legislation to eliminate workplace drug testing for cannabis.
Reducing Employment Barriers
Some states are working to reduce employment barriers for individuals with previous low-level cannabis convictions.
For example, a bill was introduced in Alaska in 2019 that would restrict the release of certain records pertaining to low-level cannabis convictions for crimes that would be considered lawful today. This would ensure that employers would not have access to information about cannabis convictions of prospective employees, thus removing a barrier to employment the opportunity to become a contributing member of society.
Similarly, a bill in Illinois is working its way through the Senate that would seal records of non-violent criminal convictions for 10 years after the termination of the petitioner’s last sentence. This bill specifically states that a petitioner may petition the court to expunge records of a conviction or guilty plea for possession of not more then 10 grams of cannabis if 3 years or more have passed since the petitioner has completed his or her sentence. Like the Alaska bill, this bill aims to reduce barriers to employment for people with past cannabis convictions.
Medical Cannabis and Employer Liability
There are a few states working to address the possibility of employees being under the influence of medical cannabis during the course of their employment.
Indiana, for example, introduced a bill that would outlaw employment discrimination against medical cannabis patients, but also add certain protections for employers. The bill would allow employers to prohibit medical patients from performing any task while under the influence of cannabis. Prohibition of the performance specific tasks would not be considered unlawful discrimination even if it resulted in financial harm to the employee. This provision was presumably drafted with the intent of decreasing an employer’s liability for the actions of employees under the influence of cannabis and completing certain tasks related to their employment such as driving, operating heavy machinery, or tasks related to public health and safety.
Iris Hentze is a policy associate in the Employment, Labor & Retirement Program.