the use occurred on the job or off the job . Cannabis advocates argue that if off-the-job recreational use is permissible , then employment actions based on positive marijuana tests that may have been caused by use at any time in recent days , or even weeks , inherently discriminate against persons lawfully using marijuana off the job .
While the number of states protecting employee use of recreational marijuana is currently small , there is no question that the number will grow .
A much larger group of states protect employees from adverse employment action for off-duty medical cannabis use . Some of those states , like New Mexico , Oklahoma and Arkansas , with employment law protections for medical marijuana users also have broad exceptions to those protections for safety sensitive jobs .
A variety of other states , however , do not limit the employment protections for medical marijuana users with safety sensitive jobs . For instance , under Delaware ’ s Medical Marijuana Act , employers may not discriminate against registered medical marijuana users who use the drug consistent with state law . Delaware has no broad exception that allows employers to require those individuals holding safety sensitive positions to refrain from off-duty marijuana use .
Moreover , the creative argument by an employer ’ s attorney that the Delaware Medical Marijuana Act is preempted by the federal Controlled Substances Act in this context was rejected in 2018 by a Delaware court in Chance v . Kraft Heinz Foods . A number of other courts in other jurisdictions have declined to accept similar preemption theories based on the federal Drug-Free Workplace Act and the Americans with Disabilities Act .
Strategies for Employers Going Forward For multistate employers , coping with state law employment protections for medical or recreational marijuana use will only become more difficult as more states legally shield off-duty marijuana users from adverse employment actions . The question becomes how should businesses mitigate the risk to safety . Potential strategies include :
• Remember that in all states with employment protections for marijuana users , businesses remain free to prohibit on-premises or on-duty marijuana use , possession or impairment . Therefore , when an employer has solid evidence of on-the-job use , possession or impairment , the employer is free to take adverse action and should generally do so .
• Bear in mind that permissive laws related to marijuana do not protect employees with regard to other unlawfully used drugs , such as cocaine , heroin or opioids . Therefore , a vigorous testing program and strong use prohibition still makes sense for safety sensitive employers with regard to these commonly abused drugs .
• Recognize that some states that border Texas , including New Mexico , Oklahoma and Arkansas , allow employers to uniformly prohibit marijuana use , even medical marijuana use , by employees holding safety sensitive positions .
• Employers often become concerned about potential drug use by an employee because of unsafe or otherwise unacceptable job performance by the employee . Remember that employers remain free to discipline and terminate employees for unsafe conduct or other poor performance or behavior itself .
• Consider that some businessfriendly states , like Texas , are unlikely , at least anytime soon , to adopt these kinds of employment protections for marijuana users . For safety sensitive operations , that amounts to another argument for locating facilities in Texas or another state unlikely to adopt marijuana-friendly job protections in the near future .
Robert S . Nichols is a partner at Bracewell LLP , where he has represented employers in litigation , administrative investigations , and other actions related to employment including the defense of claims of alleged discrimination , retaliation , harassment , wrongful discharge , and occupational safety and health violations . He can be reached at bob . nichols @ bracewell . com .
Amber K . Dodds is a partner at the firm , where she counsels employers in all areas of employment law . Her advice includes analysis and direction on employment and benefits issues , such as leave administration , employee investigations , use of background checks and consumer reports , employee discipline and preventing harassment and retaliation claims . She can be reached at amber . dodds @ bracewell . com .
Reprinted with permission from the May 18 , 2022 edition of the TEXAS LAWYER © 2022 ALM Global Properties , LLC . All rights reserved . Further duplication without permission is prohibited , contact 877-256-2472 or reprints @ alm . com . # TXL-5192022-550469