Recreational Cannabis – What’s An Employer To Do?

Kollman & Saucier
Kollman & Saucier

On July 1, 2023, recreational cannabis (marijuana) became legal in Maryland for persons 21 years and older.  While employers have been navigating this territory with medical marijuana for some time now, here are some tips for employers who now have to contend with recreational use in the mix.  

Under the new Maryland law (2022 MD H.B. 1), individuals 21 and older may use marijuana while off duty.  They may not report to work under the influence or use while at work.  The law also prohibits smoking in public areas, motor vehicles, and private property where use is prohibited.

Employees may believe that an employer is now much more restricted or limited in being able to discipline for off-duty legal use that shows up in a work-related drug test.  Thankfully, that is not the case.  

Just as employers have long prohibited employees from working while under the influence of alcohol, employers remain free to (and should) prohibit on-the-job marijuana use or intoxication.  Employers may continue to require drug testing of employees, with discipline or termination permitted for a positive test (regardless of whether there is on-duty impairment). Thus, off-duty use may lead to employment consequences if a workplace drug test is positive for THC.  Of course, employers need to balance this continued right against what would happen to its workforce if it continued to screen out applicants or employees who test positive for marijuana although show no signs of intoxication or being under the influence while at work.

Moreover, current drug tests for THC levels do not establish intoxication, only whether the individual has used marijuana within the past few days, weeks or months (people metabolize marijuana differently).  As such, a positive drug test does not equate to marijuana use during or just before working hours.

With all of this in mind, here are some tips for employers to consider: 

  • Employers should continue to make clear that on-the-job use of marijuana or working while marijuana impairment is strictly prohibited.
  • Employer that intend to take action based on a positive drug test, regardless of when marijuana is used, should make this clear to employees immediately.  
  • Employers may want to consider whether to reserve marijuana testing to a segment of positions, such as those with safety-sensitive duties or to use only when there is an work-related accident or reasonable suspicion of impairment (managers should be trained on what the se signs would be).  The decision and explanation on when to test should be explained to the workforce so the process does not come across as arbitrary.
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