Over the last two decades, over two-thirds of the states have passed laws authorizing the use of marijuana for medical purposes by persons with debilitating conditions. Over one-third of the states have decriminalized possession of small amounts of marijuana for recreational use.
These laws have created difficulties for employers wishing to prevent employees from bringing marijuana into the workplace or performing work under its influence. Employer drug-use policies have been challenged in the courts by aggrieved employees based on these laws.
Recently, the Nevada Supreme Court, under the state’s off-duty conduct law, which allows an employee fired for the lawful use of any product outside the employer's premises during the employee's nonworking hours, decided adult recreational marijuana use did not qualify for protection. The court said that although Nevada had decriminalized adult recreational marijuana use, it continued to be illegal under federal law.
The court also held that because the adult recreational-use statute authorizes employers to prohibit or restrict such use by their employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim.
Finally, the legislature addressed the interplay between adult recreational marijuana use and employment law. The recreational-use statute specifically authorized employers to adopt and enforce workplace policies prohibiting or restricting use. It would have done it if the legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but testing positive at work.
Pennsylvania has ruled the opposite under Pennsylvania law.
Why This Is Important…The boundaries of what is or is not legal regarding off-duty marijuana use are undetermined in most states. Most state laws do not directly address this, and some laws on medical marijuana specifically allow for use. Since the law is unsettled, it may be best to use an “under the influence” standard, which would only come into play if an employee is impaired at work while this gets sorted out.