More States Enact Employment Protections for Off-Duty Cannabis Use

Author: Emily Scace, XpertHR Legal Editor

September 19, 2022

With recreational marijuana now legal in nearly half of all US states, a growing number of jurisdictions are beginning to enact laws aimed at securing employment protections for individuals who choose to use cannabis while off duty, posing challenges for many employers' drug-testing policies. The common thread of these emerging laws is a focus on impairment on the job rather than an employee's use of cannabis at some point in the past.

California A.B. 2188

In California, a bill signed by Governor Gavin Newsom on September 18 amends the state's Fair Employment and Housing Act (FEHA) to make it an unlawful employment practice for an employer to discriminate against an individual in hiring, firing or other terms or conditions of employment based on the person's cannabis use off the job or the presence of nonpsychoactive cannabis metabolites in an employer-required drug screening test.

Employers remain free to maintain a drug- and alcohol-free workplace, and the law does not protect employees who possess, use, or are impaired by cannabis on the job. However, drug testing for cannabis must focus on identifying impairment, not merely recent use.

The law takes effect January 1, 2024. Exceptions apply for employees in the building and construction trades, positions requiring a federal government background investigation or security clearance, and state and federal laws that mandate drug testing as a condition of employment.

D.C. Cannabis Employment Protections Act

In July, Washington, DC, mayor Muriel Bowser signed the Cannabis Employment Protections Act, which prohibits employers from taking adverse action against an individual for:

• Using cannabis,
• Participating in a medical cannabis program, or
• The presence of cannabinoid metabolites in an individual's bodily fluids in an employer-required or requested drug test without additional factors indicating impairment.

Exceptions apply for safety-sensitive positions; actions required by federal law, regulations, contracts or funding agreements; use or possession of cannabis at the employer's place of business or during work hours; and cannabis-related impairment on the job.

The law will take effect when its fiscal effect is included in an approved budget and financial plan or 365 days after the Mayor signed it, whichever is later.

New Jersey Impairment Guidance

The New Jersey Cannabis Regulatory Commission recently released interim guidance intended to aid employers in complying with a state law that prohibits adverse action against an employee solely because of the presence of cannabinoid metabolites in an employee's bodily fluid.

The guidance states that although the presence of cannabinoid metabolites in an employee's bodily fluid is insufficient by itself to allow an employer to take adverse action against an employee, the presence of such metabolites combined with physical signs or other evidence of impairment during work hours may suffice. Furthermore, employers may require an employee to undergo a drug test upon reasonable suspicion of an employee's use of or impairment from cannabis on the job, as part of a random drug testing program or following a workplace accident.

The guidance is intended to provide clarity to employers in implementing their drug-free workplace and drug testing programs until the Commission develops permanent standards for a Workplace Impairment Recognition Expert (WIRE) certification program.

Nevada Supreme Court Weighs In

In a decision cutting in the opposite direction, the Nevada Supreme Court recently held in Ceballos v. NP Palace, LLC, that recreational marijuana use did not qualify as a lawful off-duty activity entitled to employment protections under state law, despite the fact that such use has been decriminalized in Nevada since 2017.

Reasoning that marijuana is still an illegal substance under federal law, the court held that a discharged casino worker who tested positive for marijuana following a slip and fall on the job could not bring a lawsuit under a state statute prohibiting the discharge of an employee for lawful use of "any product outside the premises of the employer during the employee's nonworking hours." While recognizing the tension between the state and federal treatment of marijuana, the court ultimately held that "lawful" under the statute means lawful under both state and federal law and ruled in favor of the employer.