Can employees use legal marijuana while at work — remote and at the office?

The relationship between marijuana and work used to be simple: Smoking cannabis was illegal and applicants frequently got tested during employment screenings — so any sign of the stuff could either ruin your candidacy or get you fired.

That changed in recent years as medical marijuana became legalized  across the US. Thirty-six states now allow for the use of medical cannabis products legally, and of those, 17 — plus two territories and the District of Columbia — allow adults to use marijuana recreationally.

New questions emerge: Is it ok to use marijuana at work in states where recreational use is legalized? Does it affect job performance? And will companies still require testing?

The answers are hazy. Under federal law, possession or use of marijuana remains illegal, but the ever-changing laws in states where use is legalized has created a gray area for businesses as they begin to change — and even embrace — marijuana in the workplace.

To get a better understanding of marijuana and its relationship to work, Ladders spoke with two experts: Kate Bally, Director of Labor and Employment Service at Thomson Reuters Practical Law and Jospeh Palamar, an epidemiologist and associate professor of population health at New York University’s Grossman School of Medicine. Here’s how marijuana impacts work performance, and what it means for you at work.

Short answer: Medical marijuana is legal across most states, but recreational use is a different story.

Back in 2012, Colorado became the first state to legalize the recreational use and sale of cannabis. Since then, 16 other states have quickly pushed bills to legalize weed despite the fact that it remains illegal at the federal level.

A slew of states have approved bills to legalize leisurely weed use, including Mississippi, Montana, New York, New Mexico, South Dakota, and Virginia. Surprisingly, there are now more states where people can smoke for fun (17) than there are states where legalized THC use is barred, whether recreationally or medically (13).

How does marijuana impact work performance?

Short answer: There’s no impact unless you smoke while working.

Popular stereotypes suggest that people who smoke weed are lazy and confused. But there’s a long history of medicinal applications; medical cannabis can be used for reducing anxiety, inflammation and relieve pain, control nausea and committing from chemotherapy, and even kill cancer cells, and is used to treat patients with Alzheimer’s disease, cancer, severe and chronic pain, and other ailments. Side effects vary from person-to-person.

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“Weed is typically viewed as reducing motivation as it relaxes people who use. Reduced productivity is pretty much a bad thing across jobs,” Palamar told Ladders in an email. “I’m sure there are plenty of people who can remain productive while high, and I’m sure some people are even more productive, or perhaps creative, while high, but the stereotypical lack of productivity is what most employers likely don’t want and fear the most.”

Does toking up the night before work impact performance the next day?

It doesn’t, according to recent research. A study from 2020 found that smoking a joint after work did not hurt employees’ performance the following day at work, but it’s a different story if you partake shortly before or during work.

Researchers from the San Diego University said that concentration suffers — in addition to problem-solving — among those who smoke before or during work. This doesn’t necessarily spell disaster for marijuana; the effects of alcohol on workers, for example, are generally tolerated, as anyone who’s gone to work with a hangover can attest. This particular indulgence costs companies around $355 annually per employee.

“We have to keep in mind that marijuana will be used by a pretty large portion of people whether or not it’s legal to use,” Palamar said when commenting on New York’s recent legalization. “I think people can typically tell when someone is tipsy or drunk on alcohol inside or outside of the workplace, but this can be more difficult to discern regarding weed.

“If someone is suspected of being drunk at work, you can usually tell by just smelling them. This doesn’t necessarily work with weed.”

Will companies still require drug tests in states where recreational use is legalized?

Short answer: It depends.

When you were working part-time summer jobs, it was normal to be warned about drug tests. Weed can be detected in bodily fluids for 1 to 30 days after last use, and can remain detectable even longer in your hair, unlike alcohol, which can only be detected through urine analysis up to 48 hours after drinking.

In states where pot use is recreationally legal, the topic of drug tests gets a little clouded for both employee and employers.

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New York City passed a law in May 2020 banning most companies from requiring pre-employment testing for marijuana. Some exceptions apply (police, child-care, and machinery jobs), but the law is in place to protect workers, and even extends to company employees, which means they cannot be fired if they fail a test. New Jersey has a similar law protecting employees.

“There’s more burden on employers to understand what it means to use marijuana and what it means on the workplace, and that means there’s more rights for employees, but some of those rights are confusing,” Bally told Ladders. “There’s a lot to navigate this new environment and understand what’s required and what’s permitted for both employers and employees.”

Bally said the problem with weed and work is that the topic is so new that many people are flying blind trying to understand workplace laws, with cases being few and far between in court.

“Employers should not assume that they understand the law unless they keep track of the latest and we cannot say that traditional blue states are going to be permissive and red states will not; it just doesn’t work that way,” she said.

What does history tell us about marijuana and the future of work?

Short answer: As medicinal and recreational marijuana laws passed, so have matters involving employees and employers in court.

“A positive drug test and you’re fired may be unlawful these days depending on what your state has to say about it,” Bally said.

Workers and employers must be mindful of state laws regarding medicinal marijuana usage, and how wrongful termination could lead to discrimination.

  • In 2017, a Massachusetts employee who qualified for medical use of marijuana was fired for a positive drug test (Barbuto v. Advantage Sales). The employee said they used it sparingly at home as treatment for an illness. The Supreme Judicial Court of Massachusetts ruled businesses had an obligation to allow for disability accommodation.
  • A quadriplegic employee at Dish Network in Colorado was fired in 2015 (Coats v. Dish Network) for using medical marijuana outside of working hours. The worker sued for wrongful termination after a positive drug test, but the Colorado Supreme Court ruled that it is lawful for an employer to terminate someone even if they do it off-duty for legitimate medical purposes.
  • A Walmart employee (and medical marijuana cardholder) was fired after a positive drug test in 2016 after a work-related job injury resulted in a post-accident, positive urine drug test (Whitmire v. Wal-Mart Stores, Inc.). A federal judge said that Walmart discriminated against the worker when they fired her.

“There’s a fine line for employers just like it is with employees to make sure they are compliant with federal and state law because [marijuana] is still unlawful under federal law,” Bally said. “You could be in jeopardy as an employer, as a company, like losing a federal contract for example, so you have to be quite careful. You have to also be respectful of the new laws and medical accommodations that you may have to provide to your employees.”

Companies have adjusted their policies in recent years. Most recently, Amazon announced in June its adjusting its drug testing policy where they will no longer include marijuana in their drug-screening program for any positions outside of the Department of Transportation.

The company also called on other companies to back the Marijuana Opportunity Reinvestment and Expungement Act of 2021, a new bill introduced at the federal level that would legalize weed, expunge criminal records, and invest in communities affected.

Can I smoke weed while working remotely?

Short answer: Pretend like you’re in the office.

With COVID-19 shuttering businesses and forcing employees to work remotely, people started to consume more pot products than before.

In Massachusetts, a survey conducted by UMass Dartmouth and the Cannabis Center of Excellence found that 49% of people consumed more cannabis since the pandemic began. While respondents said that the cannabis use was used to help anxiety, depression, chronic and severe pain, and insomnia, the survey doesn’t answer whether cannabis use occurred while working; a quick glance at Reddit will tell you that workers have been smoking while working from home, which makes things even foggier.

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Can workers that are remote smoke while on the job from home? You shouldn’t because it can still cost you your job.

For workers in New York, law firm Littler Mendelson said a drug-free workplace rules extends to all work hours, meaning all time — including paid and unpaid breaks, meals, and even when you’re using company equipment.

“Employers may still prohibit marijuana use or possession during work hours, on employer premises and while using an employer’s equipment or other property,” they said.

Writing on California’s laws regarding medicinal and recreational marijuana use, Leonora Schloss, an attorney with Jackson Lewis in Los Angeles, said that while law can permit employers to prohibit drug use at work, it is the employers obligation to let employees know that rules a business has surrounding drug use in the office extends to your home during work hours.

“Employers should remind employees that during working hours, the expectation is that employees will comply with all policies of the company, including drug and alcohol policies,” Schloss wrote in the National Law Review. “If the company does not have a drug and alcohol policy, it may want to include information prohibiting the use of drugs and alcohol while performing work in a remote work agreement or work from home policy.

“If a manager or supervisor suspects that an employee is using marijuana or other drugs while performing work for the company, the supervisor should be instructed to reiterate the company’s policies.”