Effective July 1, 2023, Maryland became the 21st state to legalize recreational cannabis. Individuals 21 and over may now purchase, possess, and use cannabis products without fear of criminal repercussions in the state. Cultivation of no more than two plants is also permitted. Because Maryland has a developed dispensary system for medical cannabis, progressing from the legalization of recreational cannabis (last fall) to implementation (on July 1) was relatively straight forward. Several dispensaries in Maryland have been granted dual use licenses, and on July 1 were allowed to sell cannabis products to anyone over the age of 21 – medical certification is no longer needed.
What does this mean for employers in Maryland and its surrounding states?
Neither the initial ballot measure approving the use of recreational cannabis, nor the subsequent laws passed to implement such approval, specifically address use by employees or the impact of such use on the workplace. Nonetheless, we can glean some information from what is and what is not included in the new law.
First, the law provides that cannabis may not be consumed in a vehicle. Thus, it follows that employers can implement policies that prevent the use or possession of cannabis in company vehicles, vehicles used for work purposes, or in private vehicles on the employer’s property.
Second, the law requires that businesses subject to Maryland’s Clean Air Act take steps to add cannabis and hemp products to the list of substances that may not be smoked or vaped indoors. Accordingly, employers can and must implement policies prohibiting the smoking and vaping of cannabis and hemp products in the workplace. Likewise, individuals have no affirmative right to use cannabis at work and employers can enact – and should enact – general policies prohibiting all use at work and during work hours. Drug and alcohol policies should specify that employees may not be under the influence of or impaired by cannabis while working.
Third, there are no provisions in the new law, or any other law in Maryland, restricting an employer’s ability to test for cannabis/THC. Unlike New York and New Jersey, for example, employers in Maryland may include marijuana/THC on their testing panels, including for pre-employment or random tests.
Finally, there are no employment protections for off duty use by employees. Accordingly, employers – for now – may continue to administer and follow drug and alcohol policies that strictly prohibit use of recreational cannabis by employees. If an employee tests positive, does not have a medical certification for use of cannabis, and the employer has a policy providing for discipline or termination in the event of a positive test, the employer may follow its policy – at least for now. Notably, several states are starting to include or enact protections for off duty use, requiring that employers show impairment before issuing discipline. Maryland has not yet done so, but employers should keep an eye out for further developments in this space.
For employers in neighboring states, such as Pennsylvania, there is nothing in the law that would require those employers to make an exception to their policies for legal recreational use in another state. Recreational cannabis remains illegal in Pennsylvania and Pennsylvania employers may continue to adopt and enforce zero tolerance drug policies for recreational cannabis use.
Of course, just because an employer is allowed to test for cannabis under all circumstances or terminate an employee for legal off duty use, does not mean the employer has to do these things. Employers who are not subject to federal regulation may decide to relax their drug policies for cannabis use and focus only on reasonable suspicion testing and termination for impairment at work. Why? Work force issues and employee retention are big reasons. Employers should, if they haven’t already, assess their organizational temperament for off duty recreational use and how the legalization of cannabis might impact their hiring and retention programs. Additionally, employers should ensure they have a detailed reasonable suspicion policy and that supervisors and managers are trained regarding impairment detection, documentation, and the procedures for reasonable suspicion testing.
