Human Resources News & Insights

Some states OK marijuana use: Do employers have to change drug policies?

Marijuana use — either medicinal or recreational — is now or will shortly become legal in over one-third of U.S. states. So: What do the recent changes in marijuana legislation mean for you and your company?

Earlier this month, two states — Colorado and Washington– voted to legalize recreational marijuana use.

The number of states legalizing medical marijuana use continues to grow as well — Massachusetts recently passed a measure to approve it, and four other states have legislation pending to do the same.

Holli Hartman of Baker & Hostetler has broken down the status of federal and state laws regarding marijuana, where employment law fits in the picture and what companies can and should do next.

State law vs. federal law

First things first: Marijuana is still a Schedule I controlled substance under federal law.

That means it’s still highly illegal for people to “possess, ingest, grow, manufacture, import, distribute and sell” marijuana under federal law, says Hartman.

Where things get confusing is that a number of states have taken steps to regulate the use of marijuana in their jurisdictions, making it legal for either medicinal use or recreational use or both.

That, of course, has led to a clash between state and federal government regulations — and in the process confused a whole host of companies who operate in states where marijuana is legally accessible.

Employment law

Despite the legalization of marijuana in certain areas, both federal and state courts have made it clear that companies can ban the use of marijuana by its employees.

That includes people who have properly registered as medical marijuana patients.

In the same vein, the courts have found that the Americans with Disabilities Act doesn’t protect people who are medical marijuana patients.

Update your policy

If you’re like most companies, you’ve already got a drug and alcohol use policy, and the changes in marijuana regs for certain states won’t change its effectiveness.

At the same time, Hartman says, you may want to revise your policy if you’re in one of the 18 states where marijuana use has been legalized. (For a full list, see below.)

If you do update your policy, make it clear that despite the expansion of people’s rights outside the workplace, your company still prohibits its use and can do so legally.

You should also communicate that to staff — just so no one tries to test the policy’s legality.

Medical marijuana states

Finally, these are the states that have legalized medical marijuana use, courtesy of

  • Alaska
  • Arizona
  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Delaware
  • Hawaii
  • Maine
  • Massachusetts
  • Michigan
  • Montana
  • Nevada
  • New Jersey
  • New Mexico
  • Oregon
  • Rhode Island
  • Vermont
  • Washington
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