An Overview of Off-Duty Cannabis Use

Most states that have legalized cannabis for medical and/or recreational use have left the decision of testing employees up to the employer’s discretion. Employers want to ensure that no employee comes to work intoxicated, but at the same time, off-duty use of cannabis is out of their control and would result in a failed drug test.

This leads us to ask:

Are employers responding to state laws by easing up on workplace policies regarding the use of cannabis? Are there policies for safety-sensitive job positions? Are the same rules and regulations still implemented?

What’s the Current Landscape of Cannabis Legalization in the U.S. (as of March 2025)?

• Recreational Use

  • Over 20 states (e.g., Colorado, Washington, California, Michigan) now permit recreational cannabis use.
  • Each state sets its own regulations regarding possession limits, retail operations, and consumer protections.

• Medical Use

  • Nearly all states have some form of legalized medical cannabis program.
  • Eligible patients typically must have a qualifying condition and a recommendation from a certified healthcare provider.
  • Medical cardholders have certain protections against prosecution under state law, but workplace policies vary.

• Why It Matters for Employers

  • Many states explicitly allow employers to maintain zero-tolerance policies, even where cannabis is legal.
  • Off-duty use of cannabis raises complex questions about testing, safety, and employees’ rights.

Why Are Employers Reassessing Workplace Policies?

• Evolving State Laws

  • Rapid changes in state regulations have prompted employers to revisit drug testing policies, especially regarding cannabis.
  • In many states, no direct requirement forces employers to accommodate cannabis use at work.

• Employee Rights vs. Safety Concerns

  • Employers aim to prevent intoxication on the job, particularly in safety-sensitive positions (e.g., construction, transportation, healthcare).
  • Employees argue that off-duty cannabis use should not impact their employment status.

• Increasing Lawsuits

  • There is a notable rise in litigation related to cannabis-related dismissals and alleged discrimination.
  • Lawsuits can result in financial and reputational damage to businesses.

Who Is Most Affected by Zero-Tolerance Rules?

• Safety-Sensitive Positions

  • Drivers, machine operators, pilots, and healthcare professionals often remain subject to strict or zero-tolerance rules.
  • States typically grant employers broad discretion to restrict cannabis use in these roles.

• General Workforce

  • Many employers relax their policies for non-safety-sensitive roles.
  • However, an employer still has the authority to test for cannabis and take disciplinary actions in states that do not protect off-duty use.

What Are the Implications of Drug Testing?

• Employer Discretion

  • Most states let employers decide whether to test for cannabis and how to respond to positive test results.
  • If a test is deemed illegal under specific state laws (e.g., no proper consent or violating privacy rules), the employee may sue for damages.

• State-by-State Restrictions

  • Certain states regulate how, when, and why employees can be tested.
  • In some jurisdictions, pre-employment testing is allowed but random testing is heavily restricted or disallowed.

• Legal Consequences for Employers

  • Improper testing can expose employers to wrongful termination lawsuits.
  • Liability insurance and a thorough understanding of state laws can help mitigate legal and financial risks.

When Did Recreational Cannabis Legalization Begin?

• Historical Context

  • 2012: Colorado and Washington became the first two states to legalize recreational cannabis.
  • Over the following years, states such as Oregon, Alaska, and California enacted similar laws.
  • As of March 2025, more than 20 states have some form of legalized recreational cannabis.

• Employer Protections

  • Even in states where recreational use is legal, employers generally reserve the right to enforce drug-free workplace policies.
  • State laws often clarify that legalization does not require employers to permit cannabis use on the job.

Where Do Medical Cannabis Protections Apply?

• Patient Protections

  • States with medical cannabis programs often protect registered patients from criminal prosecution.
  • Workplace protections vary; some states prohibit firing or discriminating against legal medical users solely based on positive drug tests.

• Limits to These Protections

  • Employees can be fired if they are under the influence during work hours.
  • In many states, an employer does not need to accommodate on-site medical cannabis use.

How Can Employers and Employees Navigate These Laws?

• Clarify Workplace Policies

  • Employers should draft clear policies on drug testing, the use of cannabis, and consequences of a positive test.
  • Transparency helps reduce misunderstandings and potential legal disputes.

• Stay Informed About State Laws

  • Given the patchwork of regulations across the U.S., continual legal updates are crucial.
  • Consulting with legal professionals or industry experts can help ensure compliance.

• Consider Liability Insurance

  • Liability insurance can provide financial protection against lawsuits.
  • Coverage may include legal fees, settlement costs, and damages in cannabis-related cases.

More ways to answer:

Drug Testing

If an employer requires a drug test and an employee has cannabis in their system, it is up to the employer to decide what steps need to be taken next. However, if a drug test is done illegally, the employee cannot be dismissed based on the illegal drug test results and they also have the right to sue their employer. While there are no clear federal laws with restrictions on drug testing, your state may have laws in place.

There also is a notable rise in these types of lawsuits, causing reputational and financial damage to businesses. For companies that are on the receiving end of a lawsuit, having the right resources and understanding of the laws in their state will help. Also, having liability insurance helps in protecting businesses against costly claims and provides additional finance for proper legal representation.

Recreational Cannabis

In 2012, Colorado and Washington were the first states to legalize the recreational use of cannabis. Since then, other states like Michigan and California followed suit. Consequently, regulations for recreational cannabis use come down to state laws. For example, in California, employers are not required to accommodate medical or recreational cannabis use in the workplace. In fact, many of the states with recreational cannabis use laws expressly state that they don’t affect an employer’s legal right to continue to enforce zero-tolerance workplace drug policies.

Use of Medical Cannabis

In states where medical cannabis is legalized, individuals who have serious health issues can register for a medical cannabis card if their doctor has authorized cannabis as their treatment. They are also protected from being prosecuted under state laws.

In general, employees cannot be discharged from duty or be discriminated against for being a medical cannabis user and they cannot be discharged because they tested positive for cannabis after a drug test. But employees can still get fired for being under the influence of cannabis during their work hours if used off-site and returning to work.

Learn more how to better insure your cannabis business, contact Cover Cannabis TODAY!

Sources and Outbound Links

1. National Conference of State Legislatures (NCSL)
   NCSL: State Medical Cannabis Laws
   NCSL: Marijuana Overview

2. Marijuana Policy Project (MPP)
   MPP: State Policy – Overview of current cannabis laws in various states.

3. California Department of Industrial Relations
   DIR: Workplace Drug Testing

4. Colorado Department of Revenue
   CDOR: Marijuana Enforcement Division – For regulations on cannabis in Colorado.

5. Washington State Liquor and Cannabis Board
   WSLCB: Cannabis

6. Michigan Department of Licensing and Regulatory Affairs (LARA)
   LARA: Marijuana Regulatory Agency – State guidelines for medical and recreational use.