Medical Marijuana in the Workplace
Medical marijuana is legal in most U.S. states, yet it remains a Schedule I controlled substance under federal law. This legal conflict creates a complex environment for employers. At the federal level, marijuana has “no currently accepted medical use” and the Americans with Disabilities Act (ADA) explicitly excludes employees who are “currently engaging in the illegal use of drugs” from protection.
In practice, this means federal law does not require employers to accommodate on- or off-duty use of cannabis. However, many states have enacted medical cannabis laws that prohibit employment discrimination against qualifying patients. For example, Connecticut’s medical cannabis program (PUMA) flatly forbids firing or refusing to hire someone solely because they are a certified patient. Likewise, Illinois law prohibits penalizing a person for status as a registered patient. Employers must therefore navigate both the general federal framework and a patchwork of state statutes and court decisions when addressing marijuana in the workplace.
Federal Obligations and Drug-Free Workplaces
Under federal law, all employers have a legal duty to provide a safe workplace. The OSHA General Duty Clause (29 U.S.C. § 654) mandates that each employer “shall furnish… a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm”. OSHA has made clear that it “strongly supports measures that contribute to a drug-free environment and reasonable programs of drug testing” as part of workplace safety. In other words, intoxicated or impaired employees are viewed as workplace hazards and employers have a duty to protect their workplace from those hazards.
How to do this with legal medical cannabis has been a point of strong contention, which has ultimately given rise to impairment detection technology, like Gaize. We’ll discuss that more later on.
Federal contractors face an additional requirement under the Drug-Free Workplace Act of 1988, which obligates them to maintain a drug-free workplace policy. Courts interpreting this law have generally held that it focuses on on-the-job use. In practice, as long as an employee uses marijuana only on their own time and is not under the influence at work, the Drug-Free Workplace Act is not violated.
That said, Department of Transportation (DOT) regulations make no exception for medical marijuana: for example, FMCSA rules disqualify any commercial driver who “uses any Schedule I controlled substance such as marijuana,” and forbids drivers from being “under the influence of any Schedule I controlled substance…including marijuana, while on duty”. Aviation and rail agencies have comparable prohibitions. In short, for safety-sensitive roles covered by federal rules (e.g. pilots, truck drivers), any marijuana use – medical or not – disqualifies an employee from operating equipment.
Key Federal Takeaways:
CSA (21 U.S.C. § 802 et seq.) – Federal law still classifies marijuana as Schedule I, with no recognized medical use.
ADA (42 U.S.C. § 12112/12114) – The ADA forbids discrimination on the basis of disability, but specifically excludes employees “currently engaging in the illegal use of drugs”. Because medical marijuana is illegal under federal law, ADA does not protect a worker’s cannabis use.
OSHA (29 U.S.C. § 654(a)(1)) – Requires employers to provide a workplace “free from recognized hazards”. OSHA has stated that drug-free policies and testing programs support workplace safety.
Drug-Free Workplace Act (41 U.S.C. § 8101 et seq.) – Federal contractors/grantees must certify a drug-free environment. Courts interpret this as allowing off-duty use, so long as employees are not impaired at work.
DOT and Other Safety Rules – Federal safety regulations (FAA, FMCSA, FTA, FRA, etc.) categorically ban marijuana use for covered employees. DOT’s Medical Qualification standards, for instance, bar any use of Schedule I drugs for commercial drivers.
State Laws and Patient Protections
States have responded to medical legalization with varying approaches, but an increasing number have adopted protections for medical cannabis users. Many states now treat lawful off-duty medical cannabis use like other legal conduct, while allowing employers to prohibit any use or impairment at work. After all, in a place where cannabis is legal, telling an employee they can’t use it outside of work is like telling an employee that they can’t have a beer or glass of wine on their personal time - a difficult requirement to be sure.
Below are key examples of state laws and policies that shape employer policy with respect to medical marijuana in the workplace:
California – AB2188 and SB700
AB2188 (effective January 1, 2024): Prohibits employers from discriminating against employees or applicants for off-duty cannabis use, specifically based on non-psychoactive cannabis metabolites detected in drug tests.
SB700 (effective January 1, 2024): Prohibits employers from asking applicants about prior cannabis use.
Exceptions: Does not apply to federal contractors, safety-sensitive positions, or roles that require federal background checks.
CA AB2188 Summary – California Legislative Information
Washington – SB 5123 (2023)
Effective January 1, 2024, this law bars most employers from disqualifying job applicants based solely on a positive pre-employment cannabis test.
Applies to off-duty, legal adult-use or medical cannabis consumption.
Exceptions: Does not apply to:
Safety-sensitive positions identified by the employer.
Jobs requiring federal background checks or governed by federal law.
Law enforcement, corrections, and certain first responder roles.
Washington SB 5123 – WA State Legislature
New York – Cannabis Regulation and Taxation Act (CRTA)
Employers cannot discriminate against employees or applicants for lawful, off-duty cannabis use.
Positive THC tests alone cannot justify discipline or termination.
Employers may take action only if an employee manifests “articulable symptoms of impairment” that impact performance or safety.
NY Department of Labor Guidance on Cannabis Use in the Workplace
New Jersey – Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA)
Protects both medical and adult-use cannabis users from adverse employment actions due to off-duty use.
Employers must use a Workplace Impairment Recognition Expert (WIRE) or a scientifically valid method to determine on-the-job impairment before discipline.
Positive test results alone are not sufficient for action.
NJ Cannabis Law FAQ for Employers
Connecticut – Responsible and Equitable Regulation of Adult-Use Cannabis Act (RERACA)
Employers may not take action against employees or applicants for off-duty cannabis use.
Employers must provide written policies about cannabis testing and discipline in advance.
Exemptions apply for safety-sensitive positions and federal compliance.
CT Cannabis Law Employer Guide
Minnesota – HF100 (2023)
As part of adult-use legalization, Minnesota’s law prohibits adverse action based on lawful off-duty use of cannabis, effective August 1, 2023.
Amended its drug testing law to disallow pre-employment or random cannabis testing for most roles.
Exemptions apply for safety-sensitive, federal, and law enforcement roles.
MN HF100 – Adult-Use Cannabis Bill Summary
Montana – Montana Marijuana Regulation and Taxation Act
While employers retain the right to maintain drug-free workplaces, they cannot discriminate solely based on a person’s status as a medical marijuana cardholder.
However, employers are not required to accommodate on-site use or impairment during work hours.
Montana Code Annotated – Title 16, Chapter 12
Rhode Island – Adult Use Cannabis Act (2022)
Employers may not penalize off-duty adult cannabis use.
Employers can take action if actual impairment on the job affects safety or performance.
Cannabis testing must be tied to reasonable suspicion of impairment.
RI Cannabis Act – Summary for Employers
Nevada – AB132 (2020)
Prohibits employers from refusing to hire an applicant because of a positive pre-employment cannabis test, with exceptions for safety-sensitive roles and federally regulated positions.
Nevada AB132 – Pre-Employment Testing Law
Accommodating Employees vs. Ensuring Safety
Employers must balance patient rights with their paramount obligation to maintain a safe workplace. Thankfully, every state law and court decision agrees on one point: employers can continue to ban on-the-job cannabis impairment and discipline marijuana impaired employees. Connecticut law, for example, explicitly states that employers retain “the ability to prohibit the use of intoxicating substances during work hours” and to discipline employees under the influence at work. California’s AB 2188 likewise clarifies that it does not allow on-the-job use or workplace impairment – basically, employers may still enforce safety rules.
In practice, many employers have updated policies to focus on impairment rather than presence of THC. Federal courts, researchers and state regulators emphasize that unlike alcohol, THC can linger long after impairment fades. A drug test detecting a cannabis metabolite, or even active THC, does not prove impairment at work. Thus, a number of states now prohibit drug tests that only check for inactive metabolites, and instead require “articulable symptoms” (impairment) before finding an employee to have broken workplace policy. Employers have historically handled this by training supervisors to notice signs like slurred speech, poor coordination, the smell of marijuana or erratic behavior. Unfortunately, humans aren’t very good at this work, which has given rise to impairment detection technology (like Gaize), which can render an extremely accurate, rapid, and objective assessment.
Broadly, employer best practices for combating workplace impairment include:
Clear written policy: State that off-duty medical use is not grounds for discipline, but working under the influence of any intoxicant (including cannabis) will not be tolerated. Ensure policies reflect state law (e.g. no off-duty testing for metabolites in CA).
Manager training: Teach supervisors how to recognize and document signs of impairment via their reasonable suspicion procedures. A good guide is the “specific articulable symptoms” standard in laws like NY’s 201-D.
Case-by-case accommodation: If an employee notifies you of medical cannabis use, analyze whether any reasonable accommodation is required (state laws differ). In most states, employers can ask for doctor’s notes or shift schedules, but cannot require use at work or violate federal law. In Minnesota and possibly Florida, a qualified employee may request accommodations (e.g. modifying duties) and employers must consider them unless undue hardship exists.
Consistent testing policy: For jobs not covered by federal regs, use on-site impairment tests (breath/alcohol or any substance) only when there is reasonable suspicion, post-accident, or as allowed by state law. Many states forbid random or pre-employment testing for cannabis alone. When in doubt, testing should focus on impairment (like a breathalyzer) rather than blanket urine screens for THC.
Document safety needs: Make sure the workplace indeed has safety-sensitive tasks (heavy machinery, driving, etc.). If so, emphasize that federal regulations may override state protections for those roles. For example, a pilot or truck driver will be disqualified under federal law regardless of a medical card. For other positions, show that any drug-free rule is based on legitimate safety concerns.
Impairment Detection Technology: One growing strategy is to use objective testing technology to confirm on-the-job impairment, without implicating lawful off-duty use. For instance, Gaize is a commercially available system that performs an automated eye-tracking test (about 6 minutes long) to detect drug or alcohol impairment. Gaize uses the same ocular indicators that law enforcement Drug Recognition Experts look for, and in trials it claims over 98% accuracy. (The company notes its device is “50-state legal” and provides video evidence for each test.) More generally, the National Safety Council has identified numerous “Impairment Detection Technologies” that screen for multiple impairment types (alcohol, cannabis, opioids, fatigue, etc.) and emphasizes that eye-movement tests are the most common method among them. Other approaches include cognitive smartphone apps that take about 90 seconds to assess alertness. While such tools cannot replace human judgment, they offer an objective, documented assessment of impairment on duty. (By contrast, note that a positive marijuana metabolite test alone is not proof of impairment.)
In short, employers are increasingly balancing rights and safety by screening for impairment rather than mere drug use. A proactive employer will stay abreast of the latest tools and laws, work with legal counsel on evolving state requirements, and train staff that any employee who is visibly impaired must be removed from safety-sensitive tasks immediately.
Relevant Laws and Cases (by State/Type)
Federal – Controlled Substances Act (21 U.S.C. § 812) – Marijuana is Schedule I. ADA (42 U.S.C. § 12114) excludes “illegal drug use” from disability protection. OSHA (29 U.S.C. § 654(a)(1)) – general duty to keep workplace free of hazards. Drug-Free Workplace Act (41 U.S.C. § 8103) – requires certified drug-free programs for federal contractors.
California – AB 2188 (2022, Gov. Newsom) – prohibits adverse employment action for off-duty cannabis use. Carves out safety exceptions but makes illicit only on-duty impairment. Employers still enforce drug-free rules on-premises.
Connecticut – P.A. 21-26 (amending the Palliative Use of Marijuana Act) – bars firing or refusing to hire based on medical cannabis status. Employers may still forbid intoxication at work. In Noffsinger v. SSC Niantic (D. Conn. 2018), the court held this state law survives despite federal illegality.
Illinois – 410 ILCS 130/30–55 (2013) – protects medical users off-duty. § 30 expressly forbids discrimination against status as cardholder (with a federal-law exception). § 30 also permits disciplining a patient who exhibits “specific, articulable” impairment on the job.
Minnesota – S.F. 73 (2023) – adds “cannabis” to state law as a lawful consumable product, prohibiting adverse actions for off-duty use. Employers may still test or discipline employees in specified safety-sensitive roles or if federally required. Under the Works Act, employers cannot do pre-hire or random THC testing, and must rely on observed impairment.
New York – N.Y. Labor Law § 201-d (2021) – permits lawful off-duty cannabis use and forbids discrimination for such use. Employers may act if an employee shows “specific articulable symptoms” of impairment on duty that reduce performance or endanger safety. (This statute covers both medical and recreational cannabis.)
New Jersey – Cannabis Regulatory Enforcement Assistance and Modernization Act (CREAMMA, 2021) – prohibits adverse action based solely on a positive cannabis test or use off-duty. No private right of action was implied, but state enforcement against employers is possible.
Florida – Fla. Const. art. X, § 29 (2016 Amendment 2) – legalizes medical marijuana, contains a “lawful off-duty activity” clause that has been interpreted to require reasonable consideration of accommodations. In Giambrone v. Hillsborough County (Fla. 13th Cir. 2024), the court held employers must accommodate off-duty medical use like any other medication, unless doing so conflicts with federal law. (This remains a developing area of law.)
Other Jurisdictions: Massachusetts’s “Lawful Activities” law (M.G.L. c. 149, § 188) protects off-duty medical cannabis use; Oregon’s statutes forbid requiring accommodation but allow discipline for on-duty impairment; Hawaii (HRS 329-126) bans discriminatory action for off-duty use; and many states’ medical marijuana laws (e.g. Delaware, Pennsylvania, Rhode Island) contain anti-discrimination provisions similar to Connecticut’s.
Practical Tips for Employers
Policy Revision: Clearly state that off-duty medical marijuana use will not jeopardize employment, in line with applicable law. At the same time, explicitly forbid any on-duty cannabis use or impairment. For example, update your drug-testing policy so it does not target employees for non-psychoactive cannabis metabolites (as California now requires). Make sure drug-free policies focus on current impairment.
Manager Training: Educate supervisors to recognize signs of impairment (slurred speech, lack of coordination, erratic behavior, etc.). Supervisors should know the correct steps: confidentially evaluate the employee, possibly administer a fitness-for-duty test, and remove impaired workers from safety-sensitive tasks. As New York’s guidance notes, only “objectively observable” symptoms of actual impairment should be cited. Document any observed symptoms and consult HR or legal before taking action.
Consider Accommodations Thoughtfully: If an employee notifies you of medical marijuana use off-duty, treat it like any medical condition with work restrictions. Where state law requires it (Minnesota, perhaps Florida), engage in an interactive process to see if a reasonable accommodation is possible without compromising safety. Possible accommodations could include modified shifts or reassignment – but remember that no law forces you to allow a worker to be under the influence on-site. Consult counsel in states with strong protections to ensure compliance.
Impairment Screening Technology: Explore available tools for objective impairment checks. Eye-tracking systems like Gaize administer a brief test of eye movements and reaction times to detect cannabis (and other drug) impairment in real time. Gaize’s vendors report over 98% accuracy in clinical studies, and the system generates video-backed evidence of impairment to support employer decisions. Cognitive mobile apps (e.g. Fit-for-Duty) can also screen workers via smartphone in about 90 seconds. According to the NSC, many modern IDT systems (roughly 60% of those surveyed) are based on oculomotor (eye movement) tests, similar to Gaize. While none of these technologies is mandated by law, they can help employers distinguish true impairment from lawful off-duty use.
Legal Compliance: Stay on top of state law changes. For instance, by law CA employers cannot discipline someone just for off-work cannabis use, but they can still discipline actual impairment. In contrast, federal DOT regulations require discipline (often termination) for drivers who test positive for marijuana. Align your policies accordingly. Keep clear records: if an accident occurs and an employee later tests positive for THC, documentation of observed impairment (not just the test result) will be critical.
Maintain a Drug-Free Culture: Emphasize that the goal is a safe workplace. Reinforce that medical marijuana is one of many substances (like alcohol or opioids) that can cause impairment. Encourage a culture where employees feel safe reporting medication use that might affect work, and support alternative treatments or accommodation if needed. Remember OSHA’s and DOT’s mandates: safety-sensitive roles cannot compromise on impairment.
By following these steps—rooted in current law and best practices—employers can respect patient rights while upholding their safety mission. The key is to treat medical marijuana like any other off-duty medication: lawful at home, but never permitted to jeopardize safety at work. With clear policies, trained personnel, and even new impairment-screening tools, workplaces can safely adapt to the evolving landscape of cannabis legislation.
Looking Ahead: Federal Rescheduling and the Evolving Legal Landscape
What Happens if Cannabis is Rescheduled?
In 2024, the U.S. Department of Health and Human Services formally recommended that marijuana be rescheduled from Schedule I to Schedule III under the Controlled Substances Act (CSA) — a proposal that the DEA is currently reviewing. While this shift would mark a historic change in federal drug policy, it’s essential for employers to understand that rescheduling is not legalization.
If marijuana is moved to Schedule III, the following implications are likely:
Medical Use Recognized Federally: Schedule III substances are considered to have “accepted medical use.” This could open the door for prescription-based cannabis products under FDA regulation. However, most current state-regulated marijuana products would still fall outside FDA-approved use.
ADA Implications Could Evolve: The ADA excludes users of Schedule I drugs from protection, but this exclusion does not apply to Schedule III drugs. If marijuana is rescheduled, employees using medical marijuana could gain ADA protections, particularly if it’s prescribed. This may require employers to consider reasonable accommodations for medical use, such as modified work schedules or duties, especially in non-safety-sensitive roles.
Drug-Free Workplace Act May Remain Unchanged: Rescheduling may not automatically alter obligations for federal contractors. The Act mandates a drug-free environment, but doesn’t explicitly reference CSA schedules. Nevertheless, federal agencies could issue new guidance or revise regulations to reflect the rescheduling change.
DOT Regulations Would Still Apply: The Department of Transportation’s stance has been clear: even if marijuana is rescheduled, DOT agencies like the FMCSA, FAA, and FTA will continue to prohibit use for safety-sensitive workers until new rulemaking occurs. Employers in these sectors should expect zero change in policy — at least initially.
Workplace Testing Policies May Face Legal Scrutiny: As federal recognition of cannabis as medicine increases, courts may be more inclined to scrutinize employer policies that automatically disqualify employees for lawful medical use. In turn, employers may face pressure to adopt impairment-based approaches, rather than blanket prohibitions.
In short, rescheduling cannabis would reduce legal risk for patients and may expand their workplace rights, particularly under disability laws. However, it won’t nullify the need for drug-free policies, reasonable suspicion protocols, or impairment detection tools like Gaize — especially for safety-critical positions.
Trends in State Laws: Toward Off-Duty Use Protection and Impairment-Based Policies
Over the last five years, there’s been a clear and accelerating shift in state laws away from penalizing off-duty marijuana use and toward focusing exclusively on on-duty impairment. The legislative trend is moving in the direction of:
Explicit Off-Duty Protections: States like California (AB2188), New York, New Jersey, Minnesota, and Connecticut now prohibit discrimination against employees for legal off-duty cannabis use. More states are considering similar laws, particularly as public opinion overwhelmingly supports medical and adult-use legalization.
Limits on THC Testing: Several jurisdictions now restrict or prohibit employment decisions based solely on THC metabolite tests. These metabolites, which can remain in the body for days or weeks, do not indicate current impairment. Laws in California, New York, and Minnesota have begun to favor testing methods that assess functional impairment, and courts are backing that shift.
Focus on Articulable Symptoms of Impairment: States are adopting standards that require observable, articulable symptoms (e.g., erratic behavior, poor coordination) before discipline or removal from duty. New York’s cannabis workplace guidance is a key example, and similar rules exist in Illinois, Minnesota, and Connecticut.
Safety-Sensitive Carveouts: Even the most cannabis-friendly laws include exceptions for federally regulated or safety-sensitive roles. Employees in roles involving transportation, heavy machinery, or emergency services remain subject to stricter testing policies — and employers are protected in disciplining impaired workers in these settings.
Rise of Impairment Detection Technology (IDT): As legal THC testing becomes more limited, states are encouraging the adoption of real-time impairment detection systems. Organizations like the National Safety Council and National Institute for Occupational Safety and Health (NIOSH) are increasingly evaluating tools like Gaize that can identify functional impairment regardless of the substance involved — including fatigue and prescription drugs.
Sources:
Connecticut's Palliative Use of Marijuana Act (PUMA)
https://www.cga.ct.gov/current/pub/chap_420f.htmIllinois Compassionate Use of Medical Cannabis Program Act
https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3501&ChapterID=35Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 / § 12114
https://www.ada.gov/pubs/adastatute08.htmOccupational Safety and Health Act (OSHA) General Duty Clause, 29 U.S.C. § 654(a)(1)
https://www.osha.gov/laws-regs/oshact/section5-dutiesControlled Substances Act (CSA), 21 U.S.C. § 802 et seq.
https://www.deadiversion.usdoj.gov/21cfr/21usc/802.htmDrug-Free Workplace Act of 1988
https://www.samhsa.gov/workplace/toolkit/drug-free-workplace-act-1988Federal Motor Carrier Safety Administration (FMCSA) Regulations
https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/overview-drug-and-alcohol-rules
