Recreational marijuana laws and employers: What we can VERIFY

On Nov. 7, 2023, Ohio became the 24th state in the U.S. to legalize recreational marijuana. The new law will allow adults in the state to buy and possess up to 2.5 ounces of cannabis and to grow up to six plants at home. 

VERIFY reader Michelle asked whether workers who use marijuana in states where recreational use has been legalized are protected from disciplinary action by their employers.

THE QUESTION

Are workers who use recreational marijuana in states where it is allowed legally protected from disciplinary action by their employers?

THE SOURCES

• U.S. Department of Agriculture (USDA)
• SHRM
• National Conference of State Legislatures (NCSL)
• Recreational marijuana and employee protection laws in various states

THE ANSWER

The answer to this question needs context because it depends on the state, the type of work and the employer.

Sign up for the VERIFY Fast Facts newsletter here. 

WHAT WE FOUND

Some workers who use marijuana in states where recreational use has been legalized are protected from disciplinary action by their employers, while others are not. Here’s what we can VERIFY.

Federal workers must follow drug-free workplace rules no matter where they live

Regardless of your state’s laws, if you’re a federal worker, federal contractor or work in certain federally regulated industries, such as communications, banking, agriculture, securities, transportation, energy and international trade, the U.S. Department of Agriculture (USDA) and SHRM both say you must follow federal drug-free workplace rules and regulations since marijuana is still considered illegal by the federal government. This means you could face disciplinary action if you’re caught using marijuana.

For everyone else, the rules depend on what state you live in, the type of work you do and the employer you work for.

Protections vary in states where recreational marijuana is legal

All 24 states that permit recreational marijuana use allow employers to take action if a worker is high on the job, but only seven states and the District of Columbia have laws that protect some workers who use marijuana when they’re off-duty from facing disciplinary action or being fired, according to the National Conference of State Legislatures.

The seven states that do have protections in place for workers who use the drug recreationally are California, Connecticut, Montana, Nevada, New Jersey, New York and Rhode Island. But those laws do make an exception for employers who feel off-duty marijuana use could affect job performance or endanger others.

California’s law, for example, does not protect off-duty recreational use for construction workers or employees hired for positions that require a federal government background investigation or security clearance, according to SHRM. It goes into effect on Jan. 1, 2024.

In New York, an employer can take disciplinary action if an employee is impaired on the job or if failing to do so would result in the loss of a federal contract or funding.

Meanwhile, in Montana, an employer can take action if the worker's marijuana use affects their ability to perform job-related duties, impacts the safety of other employees or conflicts with an occupational qualification related to the individual’s employment.

Nevada’s law does not apply to people who are applying to work as a firefighter, an emergency medical technician or jobs that require employees to operate a motor vehicle and “for which federal or state law requires the employee to submit to screening tests.”

An employer in Rhode Island could take action if the employee works in a “job, occupation or profession that is hazardous, dangerous or essential to public welfare and safety.”

If you live or work in a state where marijuana is legal, you should check with your employer about their policies.