Can employers deny employment to marijuana users in legal states?

Can employers deny employment to marijuana users in legal states?

Want the scoop on marijuana laws and potential employees? Well, the rules are as hazy as a smoke-filled room (pun intended). For the time being, eight states including Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington, have legalized the recreational use of marijuana. For employers in these states, the question must be asked, “Can we legally deny employment to a job seeker who tests positive for marijuana?” And what about present employees testing positive for marijuana?

It’s complicated in the states where employment is “at-will,” meaning companies can dismiss workers without a “just cause.” Marijuana-legal states with minimal exceptions to “at-will” employment include Maine and Massachusetts. Usually in these states, individual firms can prohibit marijuana consumption regardless of state or federal law.

California provided an “out” for employers. With Proposition 64, which legalized recreational use, California employers were also allowed to penalize workers testing positive whether they were “high” on the job or not.

With recreational marijuana use illegal at the federal level no matter the state, employees of federal agencies, as well as workers in federally-regulated industries such as transportation, banking and healthcare, must accept the “buzz-kill” as they are prohibited from using marijuana no matter the time or locale. Employers outside of these industries should stay alert to changes in state laws, including drug-testing laws.

Businesses in states where marijuana use is legal for medicinal purposes (29 and counting) should not take adverse action against a candidate without consulting legal counsel. Twelve states, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, Rhode Island and West Virginia, have “compassionate care” statutes when allowing marijuana to be used for medical reasons. Under these laws, employers generally cannot disqualify someone from work because they tested positive for marijuana.

GroupOne urges all employers to remain vigilant and attentive to this issue and keep an eye out for potential legislative action. It’s important to redevelop comprehensive drug policies as laws over marijuana usage will continue to evolve over the next few years.

 

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