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Toke and Type: Employee’s Recreational Marijuana Use

More than half of the United States have legalized either medical or recreational marijuana use, which can strain employers as they try to keep their company policies up to date. Questions run the gamut. Can employers refuse to hire an applicant if they fail a drug test? Must the employer accommodate an employee’s request to use marijuana? Can an employee eat a THC-laced edible in the breakroom and then return to work? The answers vary from state to state – well, except for maybe the breakroom snack question.


In 2012, Colorado and Washington were the first states to legalize marijuana for recreational use. As it was in 2012, marijuana remains a federally illicit drug. However, as states began to pass laws legalizing the drug on a state level, the Obama administration shifted federal enforcement priorities by outlining the infamous “Cole Memorandum” – named after its author, James M. Cole. Instead of the Department of Justice (DOJ) prosecuting adult marijuana users in states where the drug is legal, the department would focus on preventing sales to minors and cracking down on drug traffickers.

After the Cole memo, a handful of other states enacted measures legalizing recreational marijuana use including Oregon, California and Massachusetts. However, earlier this year the DOJ, under the Trump administration, rescinded the Cole memo, which may stifle other states’ appetites to enact recreational marijuana use laws.

Drug-Free Workplaces

Generally, employers can treat recreational marijuana use in the same way as recreational alcohol use. Just as employers are allowed to bar employees from cracking open a few beers in the breakroom, it would be perfectly acceptable to prohibit John and Jane from enjoying a tray of THC brownies at lunch. Employers have duties to maintain safe workplaces, so banning the workplace consumption of substances that cause impairment is prudent of any employer. Employers do not have to tolerate on-the-clock impairment, regardless of the reason for marijuana use.

The issue gets a bit trickier if the employee is using marijuana for medical purposes. Although employers can still bar an employee’s marijuana use while at work, employers in some states may be required to grant the employee a reasonable accommodation to allow for off-the-clock marijuana use. Because marijuana is illegal federally, the Americans with Disabilities Act does not require reasonable accommodation relating to marijuana use. However, some state courts have expressly required employers to provide reasonable accommodations to medical marijuana users.

Hiring Considerations

 Employers operating in states with friendly marijuana laws may need to consider a more flexible drug policy that does not automatically exclude job applicants found to use marijuana. States and cities are continually passing laws that are more protective of an individual’s right to use marijuana. For example, San Francisco recently passed an amendment to its “Fair Chance Ordinance” which prohibits employers from basing hiring decisions on an applicant’s convictions relating to decriminalized conduct, such as the use and cultivation of cannabis. Expect other states to follow suit with similar laws.

Some employers, however, have more latitude when it comes to excluding applicants who use marijuana. If an employer is a federal contractor, which would be subject to federal laws banning marijuana, the employer can refuse to hire an applicant based on marijuana use. Additionally, employers seeking to fill certain safety-sensitive roles have more freedom when considering marijuana use in hiring decisions.

The tangled web of federal, state and local marijuana laws creates an uncertain legal landscape for employers. Creating drug policies can be difficult, especially for multi-state employers. Balancing the rights of marijuana users with the interest of employers to have a safe, productive work environment can prove challenging. Consulting with legal counsel is wise when designing a company drug policy.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.