Off-Duty Use of Medical Marijuana: To What Extent Can Employers Say Something About It?

Cannabis Business Executive

Nathaniel M. Glasser, Member of the Firm, and Anastasia A. Regne, Law Clerk – Admission Pending, in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, and New York offices, respectively, co-authored an article in Cannabis Business Executive, titled “Off-Duty Use of Medical Marijuana: To What Extent Can Employers Say Something About It?”

Following is an excerpt:

Before the rise in acceptance of medical marijuana use, companies often strictly enforced zero tolerance drug policies, even if those policies effectively prohibited employees’ off-duty use of medical marijuana. The legal landscape, and public perception, has drastically changed over the last five to ten years. State statutes increasingly provide protections to employees who are lawful users of medical marijuana, some going so far as to require accommodation of medical marijuana use. Even where state or local law does not provide express protection for lawful off-duty use, recent court decisions have provided additional employment rights to lawful medical marijuana users.

Recent Decisions Suggest Accommodation of Off-Duty Cannabis Use May Be Required

While prior to 2017, court decisions indicated that employers could control off-duty conduct (at least when it came to cannabis), a sea of change occurred two years ago, with a number of courts interpreting state laws to provide at least some employment protection to the lawful off-duty use of medical marijuana.