On Election Day, voters in California, Massachusetts and Nevada approved state law initiatives to legalize the recreational use of marijuana. These states join four other states and the District of Columbia that previously legalized recreational marijuana use, and over a dozen states that have legalized medical marijuana. Marijuana remains an illegal Schedule I drug under the federal Controlled Substances Act.
This election season has highlighted a hot-button issue for employers: if recreational marijuana use is legalized by voters in a particular state, what does that mean for employers—and for the workforce?
Employers can largely breathe a sigh of relief. The legalization of recreational marijuana at the state level should not have a significant impact on an employer’s operations. Employers can still maintain a drug-free workplace policy, require employee drug testing in accordance with state and federal laws, and expect employees to show up sober and ready to work.
Given the change in state law, employer best practices are increasingly important. Employers should ensure that employment policies, including drug and/or alcohol use policies, are clear, updated, and applied consistently to all employees and applicants. Employers should anticipate that the legalization of the recreational use of marijuana may cause an increase in the number of failed drug screens for both employees and applicants. Employers should also be aware that state off-duty conduct laws may prohibit an employer from discriminating against or terminating an employee or applicant because he or she participates in legal conduct during nonworking hours.