Few areas of the law have evolved more quickly than the quagmire of federal, state, and local laws governing employee use of marijuana. Although cannabis remains a Schedule I drug under the federal Controlled Substances Act, more than two-thirds of all states have legalized medical marijuana. More than 20 states permit adults who are 21 or older to purchase and consume cannabis products recreationally. The latest trend? A growing number of state and local jurisdictions that have passed laws to protect employees who use marijuana and cannabis products outside of workplace hours and off workplace premises. Employers across the country are now faced with the challenging task of navigating these laws, which vary widely by jurisdiction, to bring their employment policies and practices into compliance and to avoid legal liability.
Employers have historically had the right to enforce policies that prohibit off-duty marijuana use when it might reasonably affect the workplace. That is still the case in a majority of states. In these jurisdictions, employers generally have a right to require job candidates and employees to take drug tests that screen for marijuana use, and to take adverse employment actions, including disqualification from hiring or termination of employment, if the job candidate or employee tests positive for tetrahydrocannabinol (THC) or cannabis metabolites.
Some jurisdictions, like Maryland,...
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