Budding Workplace Marijuana Impairment Laws Put Employers in a Bind

With an increasing number of states passing laws to protect employees who utilize marijuana off-duty, employers throughout the country are presently tasked with redesigning their marijuana-related policies and practices to avoid the risk of suffering discrimination, retaliation, and other claims for wrongfully taking adverse action against an employee for their marijuana legal use. However, while an employee may be permitted under state law to engage in the use of marijuana off-site, these laws do not require employers to tolerate marijuana impairment during work time and preserve an employer’s right to take adverse action as a result.

Under these new laws, prior to taking adverse action against an employee for being impaired by marijuana while on-duty, employers are required to comply with state-specific—and for multistate operators, wide-ranging—requirements for testing or otherwise detecting articulable symptoms of marijuana impairment. The wide variety of requirements under these state-specific laws, compounded by the fact that both the technologies and best practices for detecting marijuana impairment are presently nonexistent, or subjective and inconsistent, is likely to create additional legal or reputational risk for the employer.

Unlike alcohol use, an industry standard to positively test whether an individual is under the influence of marijuana does not exist.

Further, even if there was an industry standard, there is currently a glaring dearth of effective technologies to effectively detect impairment. While a number of “marijuana breathalyzers” exist on the market, their reliability has been challenged because oral THC fluid contains relatively poor or inconsistent indicators of cannabis-induced impairment. Although researchers are currently developing methods to deploy a reliable marijuana rapid test, such a product, if it becomes viable, will take years to come to market. Other more “traditional” drug tests, such as blood and urine tests, are also ineffective in detecting whether a person is presently under the influence of marijuana because they can only detect cannabis metabolites that have long since stopped having an effect.

Therefore, until both an intoxication standard and the technology to detect it exist, such a diagnosis must be made subjectively based on the employee’s appearance and behavior.

California’s Assembly Bill 2188, which becomes effective Jan. 1, 2024...