Cannabis and Employment: Medical and Recreational Policies in the States
Most states that have legalized medical or recreational cannabis leave testing decisions 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 Maine’s General Assembly repealed this statute through legislation in 2017.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.
New Jersey in particular has paid special attention to this topic. Passed at the end of the 2020 session, S2273 prohibits employer discrimination against individuals who are medical cannabis patients. Additionally, in 2021 New Jersey passed A21, or rather the “"New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act.” With this law, employer discrimination against individuals who are medical cannabis user is further prohibited; however, employers may still maintain drug-free work places at their discretion.
Several states considered legislation that would prohibit employer discrimination against individuals who use medical marijuana, while also still maintaining employers’ ability to maintain drug-free work places. Examples include Indianna’s HB1026, Connecticut’s SB888, and Alabama’s SB46 are such examples.
Florida considered several bills pertaining to medical marijuana, particularly HB 335, which also would have prevented employers from discriminating against medical marijuana users; however, this bill died in committee prior to receiving a vote in either chamber.
Lastly, in 2021, South Carolina introduced HB 3174, which would also prohibit employers from discriminating against medical marijuana users. Notably, this bill explicitly does not require employers to accommodate medical marijuana use in the work place — a trend seen fairly universally in legislation reducing employment barriers for medical marijuana users.
Reducing Employment Barriers
States with legal medical marijuana use continue to trend towards introducing laws that reduce employment barriers for medical users. The aforementioned New Jersey, Connecticut, Indianna, Alabama, South Carolina, and Florida bills can all be seen as part of a larger trend that has taken place in the past three years.
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
Once more, as states trend towards preventing discrimination against individuals who use medical marijuana, they are still maintaining employer’s rights to maintain a drug-free work place. 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.