January 18, 2022

Which states protect employees from medical cannabis discrimination?

December 21, 2021
January 18, 2022

Progressive medical cannabis laws have made great strides in recent years, but they have not always been accompanied by equal advances in the social and cultural arena. Despite a steady volume of research finding evidence for cannabis’s medicinal value, some Americans still hold on to outdated ideas about cannabis.

It will take many years to reliably separate fact from fiction when it comes to medical cannabis use. The harmful effects of so-called “reefer madness” in the 1930s and anti-cannabis propaganda initiatives in the 1970s are still resonating throughout American culture today.

As a result of this social and cultural environment, there are many areas of inconsistency within the various cannabis laws of the 37 states (plus DC and Puerto Rico) that support medical cannabis. Employment discrimination has become one of the most serious issues under live debate in state legislatures as it is illegal to discriminate against qualified employees on the basis of a medical condition.

Medical cannabis employment discrimination: a state-by-state overview

As of 2021, only 5 states and 7 cities have taken a clear stance on recreational cannabis use for employees. Most states are still subject to conflicting federal and state laws, differences in various state acts, and differing understandings of the law.

These inconsistencies make it difficult to accurately describe how individual employers will act. For instance, it is possible for medical cannabis users to test positive for cannabis despite being legal medical users, while Adderall users can get their tests certified negative for amphetamines simply by producing a prescription.

The latest information on each state’s position is outlined below. Medical patients have more protections as of 2021. 21 total states now have taken the stance that it is illegal to discriminate against employees who consume cannabis for medicinal reasons. Some of that stems from the Americans with Disabilities Act that requires accommodations for employees with medical conditions. A significant number of states have progressed in the last few years. *States without medical cannabis laws in place remain unlisted.*

  • Alabama. A new addition to the list is Alabama, which recently permitted the use of medical cannabis this past summer. There are no protections for employees written into the current law.
  • Alaska. Alaska allows people to use medical cannabis but does not have any employment-related court rulings on the books. The only mention of protection implies that employees cannot be fired from a positive drug test alone.
  • Arizona. Arizona’s medical cannabis laws feature specific language intended to help protect cannabis users from employment discrimination. Additionally, state judges have passed employee-friendly rulings in cases dealing with post-accident drug testing.
  • Arkansas. Arkansas’ medical cannabis laws include protective language intended to prevent employers from discriminating against employees who use cannabis for medical reasons. The exception is that an employer can’t hire a medical patient if the position is “safety-sensitive,” meaning having to do with confidential information or criminal investigations.
  • California. California’s medical cannabis laws don’t include specific protective language, and the state has a history of pro-employer rulings. However, popular opinion among employers is changing to allow responsible cannabis use.
  • Colorado. Colorado has a history of pro-employer rulings. Employers do not have to accommodate cannabis use either on-duty or off-duty (surprisingly) and can terminate employees for using cannabis.
  • Connecticut. Connecticut has robust laws protecting employees from workplace discrimination due to cannabis use and a history of pro-employee rulings to this effect. Employers may prohibit their employees from using cannabis during work hours.
  • Delaware. Delaware also prohibits its employers from discriminating against cannabis users, with the stipulation that employers can take action against employees who use cannabis during work hours or on company property.
  • Florida. Florida employers do not have to accommodate employees’ medical cannabis use. Two bills have attempted to add protections, but neither were passed as of 2021.
  • Hawaii. Hawaii’s laws do not authorize the use of medical cannabis in the workplace or address employee discrimination. Currently, if Senate Bill 2543 is passed, it could add protections for patient employees.
  • Illinois. Illinois passed laws similar to those in Connecticut and Delaware, protecting employees from discrimination while allowing employers to take action against employees who work under the influence of cannabis.
  • Louisiana. Employee laws have not yet been addressed in the bill passed in 2020, allowing and expanding the use of medical cannabis in Louisiana.
  • Maine. Maine protects employees from discrimination for the medical use of cannabis. In the last few years, the state has been pushing to eliminate testing altogether, but still encourages users to consume off the clock.
  • Maryland. The current law in Maryland does not mention protecting employees against cannabis discrimination. Senate Bill 504 is currently under review, and if passed, it would protect employees from adverse action if they test positive for THC and hold a valid medical card. Help take action here.
  • Massachusetts. While employers do not have to accommodate cannabis in the workplace, they cannot discriminate against medical consumption off-site. Massachusetts’s cannabis law is the result of pro-employee court rulings.
  • Michigan. Michigan has a history of pro-employer court rulings concerning medical cannabis use on the job. Employers may fire employees who test positive for cannabis, even if the employee owns a valid medical cannabis card. This may be changing, though, as a recent legal brief indicates medical cannabis users are still eligible for unemployment benefits under the law.
  • Minnesota. Minnesota employers are prohibited from discriminating against employees based on their status as medical cannabis users, but they can take action against employees who use cannabis during work hours or on company property.
  • Missouri. The law does not mention protections for medical cannabis users in regards to employment, which leaves the choice up to the employer’s discretion.
  • Montana. Montana does not require employers to accommodate medical cannabis users. Employers can include provisions prohibiting employees from using medical cannabis in employment contracts.
  • Nevada. Beginning in 2020, employers won’t be able to deny a job applicant for failing a cannabis screening test. While use is not allowed in the workplace, employers are expected to make reasonable efforts for medical cardholders.
  • New Hampshire. Employers do not have to accommodate medical cannabis use on company property and may discipline employees for using cannabis on the job. Off-duty use is allowed, but when the consumption occurred is hard to determine with current testing.
  • New Jersey. New Jersey does not require employers to accommodate medical cannabis use in the workplace and has a history of pro-employer court rulings.
  • New Mexico. The state has a history of pro-employer court rulings that imply an employer could fire a patient based on a positive drug test, but the SB 406 added some employee protections. New Mexico employers can’t refusing to hire, discharge or take any adverse action against a job applicant or employee just because the individual has a cannabis prescription.
  • New York. New York employers can’t discriminate against medical cannabis patients, and they need to accommodate use if they have 4 or more medical card-holding employees. Testing is now mostly banned in NY. The only issue is if the company has federal associations or funding.
  • North Dakota. Employers can discipline or terminate employees for using cannabis in the workplace or on company property in North Dakota.
  • Ohio. Ohio employers don’t have to accommodate medical cannabis use or possession and can enforce zero-tolerance policies against medical cannabis users.
  • Oklahoma. Oklahoma has laws to protect employees from medical cannabis discrimination, but on-the-clock use is subject to the employee handbook of each company and often frowned upon.
  • Oregon. Employers may terminate employees for testing positive for cannabis, even if the employee owns a valid cannabis card. It is dependent on the rules and regulations of their job position. Since Oregon is also recreationally legal, this is mainly viewed as an issue among federal employers.
  • Pennsylvania. Pennsylvania law protects employees from discrimination on the basis of cannabis use but allows employers to discipline staff under the influence of cannabis at work.
  • Puerto Rico. Although not technically a state, Puerto Rico does protect employees with medical cannabis use laws. Law 15-2021 is favorable with medical patients who consume safely.
  • Rhode Island. Employers don’t have to accommodate medical cannabis users in the workplace but cannot refuse to hire a person solely based on their status as a medical cannabis patient.
  • South Dakota. A recent amendment in South Dakota allows a medical patient to have the same rights as a medical patient of typical Western medicine, but they still need to remain unmedicated during work.
  • Utah. Employees with a state job may still fall subject to a drug-free workplace policy, but private employers are allowed to create their own rules based on the liability of the job.
  • Vermont. Vermont’s medical cannabis laws don’t allow for use of medical grade cannabis, but the law sits in a grey area, because severe patients seem to be covered for off-the-clock use under Vermont’s Fair Employment Practices Act. Either way, employers aren’t required to accommodate recreational users.
  • Virginia. In Virginia, certified users of medical cannabis cannot be discriminated against or fired. However, employees can ban on-the-clock use based on federal law and liability.
  • Washington. Unfortunately, Washington employers may establish a drug-free workplace policy and refuse to hire applicants who test positive for cannabis use. The state’s recreational cannabis law does not mention protections for employment discrimination.
  • Washington, D.C. Employers may enforce workplace policies that restrict employees’ use of recreational cannabis. There is no law requiring employers to accommodate the use or possession of cannabis among medical employees, but there is also no law regarding off-duty consumption. In this case, it is a grey area since testing can’t prove when consumption took place.
  • West Virginia. Employers may not discriminate against cannabis users, but they may discipline employees whose work falls below the normally accepted standard and are visibly under the influence of cannabis.

*Of these, 5 states also protect the rights of recreational cannabis users: Montana, Nevada, New York, New Jersey, and Connecticut. Maine is hoping to join these ranks as well. Newly established “low-dose program states” were not highlighted on this list, since low-dose medicine is only a few THC percentage points stronger than hemp.*

North of the border, recreational use can be restricted during work, but Canadian employers are required to make reasonable accommodations for medical patients. Cannabis use in this federally legal country is treated just like any other medication.

While there is a great deal of uncertainty around employment discrimination for cannabis use throughout the United States, most communities are gradually moving towards more liberal policies to accommodate cannabis users. The overall findings from this list come down to whether or not it impairs workers on the job. THC can stay in your system for up to 90 days and there isn’t a test that determines if a person is currently under the influence. This testing issue applies to nearly every substance besides alcohol. A Society of Occupational Medicine study found no correlation between employees who consume cannabis and the number of work-related injuries.

Change seems to already be underway, as the job shortage is causing larger employers to remove their drug testing policies. This article even expresses how ending employee drug testing could make the workforce more equitable for all. As time passes, even the strictest states are likely to pass protective legislation for cannabis users, especially when cannabis becomes federally legalized.

*Disclaimer: Dutchie does not give legal advice.

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