Evolving Cannabis Laws: 3 Common Mistakes Employers Should Avoid
Jan 3, 2024

CDF Partner Todd Wulffson recently contributed to an article on "Cannabis Challenges: What HR Needs to Know," for HR Morning.  


Regardless of how companies or managers may feel about the topic, cannabis (including recreational and medical marijuana, and any product containing THC) is becoming ubiquitous – and is approaching a $30 billion per year industry.

Marijuana is “legal” for adults in 24 states and Washington, D.C. — and medical marijuana is legal in 38 states and D.C. This creates a dilemma for many employers who do not want employees operating under the influence of THC (the psychoactive drug in cannabis) any more than they want them at work drunk. 

The confusion regarding marijuana legalization and the rapidly changing landscape of state-specific laws has created a minefield for employers.

Here is a summary of the major issues employers face, and how best to avoid stepping on one of those mines.

Mistake #1 – Believing marijuana is ‘legal’ and ignoring its potential impact in the workplace

Perhaps one of the most important things to understand, is that cannabis is not legal anywhere in the United States.

Marijuana is a Schedule I controlled substance under the federal Controlled Substances Act, right along with Heroin, LSD, Ecstasy, Crystal Meth and Peyote.

If you perform federal contracts, have employees working on federal property, or have employees subject to federal regulations (e.g. interstate truck drivers or airline pilots), you have no leeway with cannabis – your employees can never possess it or have any amount in their system.

Many states have passed laws stating that individuals will not be prosecuted under state law if they possess or grow a small amount of marijuana.

One of the biggest mistakes an employer can make, however, is believing these state laws reduce potential liability for the bad acts of a stoned employee. Cannabis impairs judgment, and this is exacerbated when someone is driving or operating machinery. 

Numerous studies are showing how THC impairment is likely to significantly increase the risk of an accident on the job. Your workers’ comp carrier is going to expect you to be proactive in this regard, and to have policies to minimize the risk of cannabis-related accidents. It is also fairly well-established that people under the effects of THC are not violent, but they tend to sexually harass each other – a lot. 

People have a tendency to lose their internal filters and inhibitions and may say or do things that can lead to discrimination or retaliation claims. The one thing that is universally true in any sort of litigation involving cannabis-fueled conduct, is that if the employer is perceived as having tolerated an employee to be high at work, even jurors that could make Cheech and Chong envious of their use of cannabis will have no problem hanging the employer out to dry for contributing to the accident or misconduct.

In some respects, cannabis is similar to alcohol – it is legal to buy alcohol, but few people will argue that allowing employees to be drunk on the job is a good idea.

The problem with cannabis, however, is that it is not as easy to detect when someone is under the influence.  People can be getting impaired using a vape pen, drinking tea or eating a cookie. They may never smell like pot, or they may smell like it because they were at a concert the night before and wore the same jacket. It can be extremely difficult to tell if someone has THC in their system because they ingested cannabis at work, as opposed to at home, where it was “legal.”

Mistake #2 – Not keeping up with cannabis laws in your state

The reaction to cannabis’ federal status, and the risk of serious liability associated with cannabis intoxication at work, leads many employers to want to adopt a “zero tolerance” policy with regard to drug testing employees (i.e. any THC in one’s system is grounds for discharge). 

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