Marijuana and the Workplace



Marijuana in the workplace is a very hot subject, especially for those of us in a "recreational" state. Employees and employers are at a loss, they have no ideas where the line is. Under federal law Marijuana is classified as a Schedule 1 substance:

"Schedule I drugs are those that have the following characteristic according to the United States Drug Enforcement Agency (DEA):

The drug or other substance has a high potential for abuse.The drug or other substance has no currently accepted medical treatment use in the U.S.It has a lack of accepted safety for use under medical supervision.

According to federal law, no prescriptions may be written for Schedule I substances, and they are not readily available for clinical use - California Law"


Many states have created their own laws in dealing with Cannabis. So far there are 3 types of Marijuana related state laws:

1. CBD only - they allow tightly limited uses of a substance called cannabidiol, which doesn't have the same psychological effects as THC. Mostly comes in oil form.

2. Medical marijuana only - only qualified patients who have debilitating conditions or something similar.

3. Medicinal + recreational - they have the same laws in regards to medicinal, but adults who are 21 or older can use it for recreational use as well.


In California, medicinal and recreational usage of marijuana has been legalized. When it comes to the workplace many have questions, unfortunately this is a very gray area, here at Enterprise Risk Management Insurance we advise you to PROCEED WITH

The laws regarding the growth, cultivation, and distribution of the cannabis plant is well outlined leading very little up to interpretation. Marijuana in the workplace is a very gray area. It pretty much boils down to that if you work in transportation or in sensitive situations, marijuana isn't allowed. Any employer can enact federal laws in regards to a zero tolerance policy for marijuana, if they follow a list of requirements. If you'd like more information on how to do this please contact ERM Insurance so we can help you do this. Now that California allows adults 21 and older to take marijuana for recreational and medicinal uses there are a lot of problems that can occur if an employer takes adverse actions against an employee allegedly under the influence of marijuana.

• What if it the employee is on it for medicinal purposes, this could violate HIPAA and be viewed as discrimination.

• An employee can test positive for marijuana days or even weeks after usage. Under state law marijuana is allowed recreationally, how does the workplace fit in to this? Do employers have the right to know what their employees do during non-work hours?

• If a workplace doesn't allow marijuana impairment during work time, how do you determine what impairment is? How do you measure that?

• Under federal law employees working with sensitive materials may not be under the influence of marijuana, but there isn't a clear definition of what sensitive materials are.


Due to these discrepancies, if an employee wants to sue or press charges for adverse actions taken against them, it will go to court. Which is a timely and costly venture. As of right now, only California and Colorado employers are covered under federal law in court cases where recreational marijuana is allowed. This means that they do tend to side with the employer - if they have proof that the employee was impaired, which again is hard to prove.


Everyone is confused about the laws regarding marijuana, ERM Insurance just urges everyone to use common sense. Employers should have clear and defined rules in regards to marijuana usage during work hours and what is allowed on the premises. For help with creating and setting up rules and marijuana conduct for your business, please contact an ERM Insurance agent.

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