Marijuana Buds & Joints

Category: Drug Legalization

Right-to-Weed States: Assessing Impairment and Managing Employee Conduct in the Workplace

On May 9, 2023, the Washington state governor signed a law that will make it unlawful for employers to discriminate against hiring a person based on their marijuana usage, making Washington the latest state to become a right-to-weed state. With medical and recreational marijuana legalization spreading, a growing number of states are further implementing protections for employees who lawfully use marijuana or cannabis.

These developments continue to create challenges for employers seeking to enforce drug-testing and drug-free workplace policies. Moreover, even in right-to-weed states that have enacted employment protections for lawful and off-duty marijuana use, employers are not required to permit employees to use marijuana in the workplace or to work while impaired by or under the influence of marijuana or other drugs. Here are some key points on the ways in which employers, even in right-to-weed states, can regulate marijuana usage and maintain drug-free workplaces.

Quick Hits

  • Employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana.
  • Employers may be required to reasonably accommodate medical marijuana users, but that does not mean employers must permit users to be impaired while working.
  • Supervisors and managers can be trained to recognize the signs of marijuana impairment.

Impairment Is Still Prohibited

While the Americans with Disabilities Act and most state counterpart laws do not require employers to accommodate illegal drug use, employers may have to engage in the interactive process to determine whether a reasonable accommodation can be made for an employee’s off-duty marijuana use if the employee is disabled. Still, employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana, just like with alcohol.

Medical Marijuana Cards Are Not Prescriptions

Generally, employers may not discriminate against individuals with a medical marijuana identification card because they: (i) possess the card, (ii) use medical marijuana off the employer’s premises during nonworking hours, or (iii) test positive for marijuana, unless there is evidence that the employees used or possessed marijuana while working or that the employees’ lawful off-duty use affects the employees’ ability to perform their jobs, affects the safety of others on the job, or conflicts with an occupational qualification reasonably related to the job. In other words, employees—including authorized medical marijuana users—may be prohibited (lawfully) from working while “under the influence” of marijuana by some employers.

Medical marijuana cards do not give employees permission to use marijuana on the job. In most states, medical marijuana authorization cards only entitle holders to purchase marijuana to treat a condition. They are not prescriptions that mandate dosages or frequency as prescriptions do with other drugs. Thus, to understand how to manage situations in which employees hold medical marijuana cards, employers may need to engage in the interactive process with these employees to determine whether they can reasonably accommodate the marijuana usage. But, again, reasonably accommodate does not mean employers must permit medical marijuana users to be “under the influence” while working.

Training Employees to Spot Impairment Is Key

Unlike alcohol, there is no standard test for marijuana that can prove current impairment. Marijuana users are typically “under the influence” between two and ten hours after usage, but some studies have shown impairment can last for twenty-four or more hours. But, even after the user is no longer under the influence, they can test positive for marijuana for weeks or longer. That said, employees may exhibit visual signs of impairment associated with being under the influence of marijuana—which differ from the signs of alcohol intoxication. Supervisors and managers can be trained to recognize when an employee may be under the influence of marijuana. Some states allow employers to designate a workplace impairment recognition expert (WIRE) who obtains specialized training to identify when an individual is impaired by marijuana.

It may be more difficult to visually observe when employees working remotely are impaired, but if there is reason to believe that an employee was impaired on the job because co-workers or customers who interacted with the employee reported it, that report itself can be evidence to show that the employee was impaired.

Next Steps

Employers may want to audit existing policies and procedures to confirm compliance with the changing landscape around marijuana usage. Employers may further want to consider training supervisors and managers to recognize the signs that employees are under the influence of marijuana, alcohol, or other drugs.

This article is based on a May 2023 presentation by Ogletree Deakins shareholders Aimee B. Parsons and Burton D. Garland, Jr. at the firm’s 2023 National Workplace Strategies Seminar in San Diego.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments in marijuana laws and will provide updates on the Drug Testing and Leaves of Absence blogs as additional information becomes available.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Medical Marijuana in Your Suitcase? How One Basketball Player’s Conviction Raises Concerns for Employers

On October 25, 2022, U.S. professional basketball player Brittney Griner lost her bid in a Russian appeals court to overturn a nine-year sentence for attempting to smuggle illegal drugs into Russia. According to reports, Griner, a Women’s National Basketball Association star and two-time Olympic gold medalist, was arrested at a Russian airport in February 2022 while attempting to enter the country to play professional basketball with vaporizer cartridges containing less than one gram of hashish oil, a product derived from marijuana. Griner reportedly has a prescription for medical marijuana in Arizona, but marijuana, including medical marijuana, remains illegal in Russia.

The U.S. Department of State has classified Griner as “wrongfully detained,” a designation that means the United States will act more aggressively to secure her release.

Griner’s situation may be special given the political situation between the countries involved. At the same time, it may serve as a reminder to employers of the risks to employees traveling for work with marijuana given the drug’s varying legal status from country to country and even state to state within the United States.

Varying Legal Status of Marijuana

Currently, recreational marijuana, or cannabis, is legal in twenty-one U.S. states plus the District of Columbia, while medical marijuana is legal in many more. The drug is illegal to import, manufacture, distribute, and possess under the Controlled Substances Act as a Schedule I controlled substance—a designation for drugs considered to have the high potential for abuse and no accepted medical use.

Around the globe, there are similar differences in the status of marijuana. While most countries continue to ban marijuana, some have limited enforcement, and several countries, such as Canada, have legalized recreational use on a national level. Many others, mostly those in Europe and South America, have legalized medical marijuana. On the other hand, some countries have strict drug laws and impose harsh penalties for marijuana possession.

The World Anti-Doping Agency (WADA) also treats marijuana as a prohibited substance for athletes competing in international sports as marijuana and cannabinoids are on the prohibited list under the World Anti-Doping Code, which seeks to harmonize international anti-doping efforts around the world. However, in 2019, WADA exempted cannabidiol (CBD), a chemical derived from marijuana that differs from the psychoactive compound tetrahydrocannabinol (THC).

Immigration Consequences for Non-U.S. Citizens

While recreational or medical use of marijuana is legal in many states, marijuana remains a controlled substance under federal law. Therefore, marijuana-related activity, such as lawful employment in the cannabis industry, possession, sale, purchase, or formally admitting to marijuana use can lead to immigration consequences for noncitizens, even if the activity is carried out in a state where marijuana is legal. Additionally, the mere admission of conduct related to marijuana can also result in failing to establish the good moral character required to obtain U.S. citizenship through naturalization. Non-U.S. citizens include lawful permanent residents (also referred to as “green card holders”), visitors, students, work visa holders, and dependents of work visa holders.

Flying in the United States

When flying in the United States, the Transportation Security Administration (TSA) does generally allow the transport of personal medical marijuana in certain situations. The TSA does warn that marijuana and certain cannabis-infused products, including some CBD oil, remain illegal under federal law. The 2018 federal farm bill made an exception “for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA.”

The TSA states that it does not specifically search for marijuana or other illegal drugs, but that if any illegal substances are found during screening, the agency “will refer the matter to a law enforcement officer.” Despite the farm bill, there have been reports of travelers in recent years being arrested and detained in some U.S. states where marijuana is illegal after marijuana or marijuana products were discovered in their luggage.

International Travelers

Traveling internationally can pose additional risks. According to U.S. law, it is illegal to import any amount of marijuana or drug paraphernalia into the United States. In April 2021, U.S. Customs and Border Protection issued a reminder to the public that those caught with marijuana entering the United States face several consequences, including federal civil penalties of up to $1,000.

It is further illegal to transport marijuana across many international borders, even if marijuana is legal in the destination country. For instance, the government of Canada, which legalized recreational marijuana in 2018, warns travelers that it is illegal to transport marijuana or cannabis products, including edibles, cannabis extracts, and topical ointments, across the border into Canada, no matter how much travelers are carrying or whether they are authorized to use medical marijuana in any form.

Further, not only have many countries not followed the legalization trend, they impose strict penalties for violations. Singapore, for example, a popular location for many U.S. multinationals, punishes possession or consumption of cannabis with up to ten years of imprisonment or $20,000 or both. And those who illegally traffic, import, or export cannabis may face the death penalty.

The U.S. Department of State warns travelers that they are subject to the local laws and regulations of a country they are visiting and that those laws and potential penalties might differ from those in the United States. Travelers who are arrested or detained abroad may have to be connected with the U.S. Embassy in that country, which, depending on the country, may be able to provide various services, such as providing a list of local attorneys who can represent the traveler.

Key Takeaways

Despite the growing legalization of medical and recreational marijuana, the drug remains illegal under U.S. federal law, in many states, and in most countries around the globe. Employers with employees who regularly travel for work, especially multinational employers with employees who must travel internationally frequently, may want to consider employment policies to ban these drugs during travel. They may also want to consider warnings to employees about the risks of travel with marijuana products even if employees are licensed medical marijuana users.

Further, employers may want to evaluate broader potential risks before asking or requiring employees to travel to certain countries currently undergoing conflict or that have tense relations with the United States.

Ogletree Deakins’ Cross-Border Practice Group and Immigration Practice Group will continue to monitor and report on developments with travel issues will post updates on the firm’s Cross-Border and Immigration blogs. Important information for employers is also available via the firm’s webinar and podcast programs.


This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.


Maryland and Missouri Pass Recreational Marijuana, Missouri Adds Medical Marijuana Cardholder Employment Protections

On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders. At the same time, voters in three other states—Arkansas, North Dakota, and South Dakota—rejected similar ballot measures.

Marijuana and Psychedelic Mushrooms State Laws

Maryland Question 4

Voters in Maryland overwhelmingly approved Question 4 with nearly 66 percent of the vote to amend the state constitution to allow for recreational marijuana use by those 21 years of age or older.

Accompanying legislation passed by the state legislature, House Bill (HB) 837, will go into effect due to the voter approval of the referendum. HB 837 specifically allows the possession and personal use of up to 1.5 ounces of marijuana or 12 grams of concentrated marijuana beginning on July 1, 2023. The bill further extends decriminalization of marijuana until that date and would provide for the expungement of criminal offenses made legal by the act. However, the bill would prohibit the smoking of marijuana in places where smoking of tobacco products is prohibited, including indoor places of employment.

Impact on Employer

Beyond generally legalizing marijuana for recreational purposes, HB 837 does little to address employer rights to prohibit employees from using recreational marijuana. As such, Maryland employers may still be able to enforce workplace drug policies and testing programs even if the referendum passes. However, employers in Maryland should remain mindful of potential disability discrimination and accommodation considerations when handling employment issues involving medical marijuana cardholders.

Missouri Amendment 3

Voters in Missouri passed Amendment 3 with 53 percent voting in favor and 47 percent voting against, according to the Missouri Secretary of State. The measure revises and amends the state’s existing medical marijuana provisions, as well as permits those twenty-one years old and older to legally possess, purchase, consume, and cultivate marijuana for recreational purposes. However, most importantly, the measure amends the state’s medical marijuana provisions. It is set to take effect on December 8, 2022.

Beyond legalizing marijuana for nonmedical purposes, the measure provides employment protections for medical marijuana users. Specifically, Missouri’s medical marijuana law will soon prohibit employers from discriminating against an employee because he or she: (1) possesses a medical marijuana identification card; (2) lawfully uses marijuana off the employer’s premises during nonworking hours; or (3) tests positive for marijuana unless the employee was using, possessing, or under the influence of marijuana while at work.

Impact on Employers

Amendment 3 does not prevent employers from generally enforcing drug and alcohol-free workplace policies or from testing for marijuana. Moreover, it does not permit employees to be under the influence of marijuana at work, and it does not provide employment protections for recreational marijuana users. Nevertheless, the amendment is relevant to employers because of the changes it makes to Missouri’s existing medical marijuana law. The added employment protections for medical marijuana cardholders will create new challenges for Missouri employers in dealing with workplace marijuana issues—the possibility of legal claims arising directly from the medical marijuana law itself.

Key Takeaways

The legalization of marijuana for recreational personal use continues to slowly spread across the United States though the recent elections shows that the population in certain areas of the country remain hesitant to legalize marijuana. Broader legalization could create additional challenges for employers in seeking to maintain drug-free workplaces. Employers in Maryland and Missouri may want to review their drug use policies in light of the new recreational marijuana legalization measures.

Ogletree Deakins will continue to monitor developments with respect to marijuana legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. In addition, further information on federal, state, and major marijuana laws and guidance on compliance with the same is available via the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes. Important information for employers is also available via the firm’s webinar and podcast programs.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Colorado Voters Pass Proposition to Allow Regulated Use of Psychedelic Mushrooms

On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older. The passage makes Colorado, which was one of the first states to legalize recreational marijuana, the second state to allow the use of psychedelics behind Oregon.

Proposition 122, or the “Natural Medicine Health Act of 2022,” passed with 53 percent of Colorado voters supporting the initiative to 47 percent who voted against, according to the unofficial results released by Colorado’s secretary of state.

The measure will decriminalize psychedelic mushrooms and by 2024 will allow the supervised use of two of the drugs found in the mushrooms, psilocybin and psilocin, at state-regulated “healing centers.” The initiative further establishes the “Natural Medicine Advisory Board” to explore and evaluate ongoing research into psychedelic drugs and their potential health benefits and make recommendations to the legislature and other state entities.

The initiative comes amid growing scientific research on the potential medical benefits of psychedelic drugs in treating mental health conditions, particularly depression, anxiety, and post-traumatic stress disorder (PTSD).

Impact for Employers

The passage of Proposition 122 could increase employers concerns with employees working under the influence of these drugs. Thus, the proposition may be an impetus for employers to review and revise their drug testing and drug-free workplace policies. The Natural Medicine Health Act states that it should not be construed “to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, or growing of natural medicines in the workplace.” This may allow employers to continue to enforce zero-tolerance policies regarding the use of psychedelics. For comparison, Colorado law does not require employers to accommodate the use of marijuana in the workplace and the Colorado Supreme Court has held that employees are not protected from discharge by the state’s employment law protections for lawful, off-duty conduct due to marijuana’s continued illegal status under federal law.

Ogletree Deakins will continue to monitor developments with respect to drug legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.
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