In the latest Weekly Wright Report:

Maryland Recreational Cannabis Laws and their Workplace Implications Remain Hazy for Employers

By Andrew Glick

Maryland employers are likely to face an increasingly uncertain landscape in the workplace when navigating the evolving recreational cannabis regulations. In the November 8, 2022 election, 67% of Marylanders approved Question 4 on the ballot, thus supporting the legalization of marijuana and directing the Maryland State Legislature to pass laws for the use, distribution, regulation, and taxation of marijuana. Effective July 1, 2023, individuals 21 years or older may legally purchase, possess, consume, and cultivate cannabis. As a result, the current interplay between employment policies on cannabis use and Maryland’s cannabis regulations, or lack thereof, can cause confusion for employers.

Neither the initial ballot measure nor the subsequent legislation addresses the impact of recreational cannabis use in the workplace on employers’ rights regarding employee testing and discipline. Absent any regulatory protections, employees remain subject to existing laws and employer policies related to cannabis or substance use. Maryland employers are not precluded from testing for cannabis use. Further, employers can enforce zero-tolerance drug policies by either disciplining or terminating an employee for lawful off-duty recreational cannabis use.

While employers have no duty to change their current practices, the dynamic between legal consumption of cannabis and employee cannabis policies is likely to bring about employee protections in the near future. Specifically, the legalization of cannabis makes it more difficult to differentiate off-duty cannabis use and impairment at the workplace. THC, the principal psychoactive compound of cannabis, can be detected in the body up to 30 days following its consumption. THC can be detected through urine, hair, blood, and saliva tests; yet there is no test to distinguish impairment and non-impairment. Therefore, an employee could face discipline or termination after legally consuming off-duty cannabis over the weekend and testing positive at work the next week, even when no longer impaired.

Due to an employer’s ability to discipline employees based on lawful off-duty conduct, some states where recreational cannabis is legal have already begun to enact employee protections (e.g., California, Connecticut, Michigan, Montana, Nevada, New Jersey, New York, Rhode Island, and Washington). Under certain state laws, an employer may be subject to liability, including administrative penalties and civil lawsuits, for taking action against an employee or candidate for having used cannabis outside of work. Other states have eliminated testing for cannabis during pre-employment drug screening altogether.

While Maryland has not yet enacted any restrictions on employers, lawmakers and regulators are already contemplating additional legislation for the 2024 General Assembly session. For now, employers can test employees and applicants for cannabis, and terminate or disqualify those with positive test results. However, employers should be on the lookout for further developments in this space and review their employment policies to reflect the developments surrounding recreational cannabis use.

If you have any questions about the implications of Maryland’s recreational cannabis laws on your employee policies and procedures, please email me at aglick@wcslaw.com, or call me at 410-659-1311.