Evolving Marijuana Laws and the Workplace

How can employers enforce statutes that differ from state to state?

Red image of a marijuana leaf
Tess P. Anglin

Tess P. Anglin

August 3, 2021 08:00 AM

This article was originally posted on October 1, 2020 and featured in the 2021 Best Lawyers in the Midwest publication.

As the landscape for the legalization of marijuana continues to change, businesses—particularly those with multiple locations in different states—are forced to rethink zero-tolerance attitudes and revisit drug testing policies.

Under federal law, all cannabis or marijuana is illegal to sell, possess, or use. However, the federal government has been reluctant to enforce these laws on the basis that many states, including the District of Columbia, permit medical marijuana and, in some instances, recreational marijuana. Several states have now passed laws legalizing marijuana in varying degrees, including some laws that now limit an employer’s ability to terminate an employee for failing a drug test.

In Illinois, the Cannabis Regulation Tax Act (CRTA) permits the personal and recreational use of cannabis for all individuals 21 years of age or older. Under the CRTA, employers are allowed to terminate workers who bring cannabis to the office, show up to work impaired, or fail random drug tests. When an employer takes any action against an employee for being under the influence of marijuana, the CRTA requires that an employee be provided a reasonable opportunity to challenge the basis of an employer’s determination.

The Michigan Regulation and Taxation of Marijuana Act (MRTMA) decriminalizes the recreational use of possession of marijuana for anyone over the age of 21. However, the employer has the right to create a policy banning the use of marijuana, test for marijuana usage, and discipline or terminate for breaking the marijuana policy. The MRTMA does not require the employer to permit or accommodate conduct otherwise allowed by the MRTMA in any workplace or on the employer’s property.

Ohio offers identification cards to patients or caregivers who have a certified physician submit an application on their behalf and who have been diagnosed with a qualifying medical condition. In Ohio, employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana at work.

In Indiana, there are limited protections for Cannabidiol (CBD) only. Indiana is among a limited number of states that have passed limited protections related to the medical use of cannabidiol oil (a plant extract of marijuana). In Indiana, the sale and possession of industrial hemp extract that contains no more than 0.3 percent tetrahydrocannabinol (THC) and no other controlled substances (Ind. Code Ann. 24-4-21-1 to 24-4-21-5) is permitted. Only Purdue University is allowed to cultivate hemp for research purposes. The Indiana law provides no protection to workers testing positive for THC in an employer drug test.

It’s important to note, that regardless of state law, federal rules require substance testing, including for marijuana, of certain employees such as truck drivers. Employers subject to federal regulation can randomly screen employees and include drug testing as part of the hiring process. Companies with federal contracts and grants, as well as federal agencies, must have a drug use policy that is enforced.

Employers have the right to maintain drug-free and alcohol-free workplaces, which includes testing applicants and employees and should clearly state the same in their workplace policies. Regardless of the level of legalization, the key issue for employers involving marijuana is not the legalization itself but workplace safety.

Unlike alcohol, a positive test result for marijuana is very difficult to detect and test for when determining if the drug usage is during work or on non-work hours. THC can remain in the bloodstream for weeks after use, so a positive test may not mean that the employee is impaired at the moment. This also assumes that the marijuana does not prevent the employee from doing his or her job and does not affect the safety of the employee, other employees, the public, or anyone else in the workplace.

In a 2015 article published in the Journal of Occupational and Environmental Medicine, studies showed that individuals who test positive for marijuana have 55 percent more industrial accidents. According to the Journal of the American Medical Association, such individuals have 85 percent more injuries and 75 percent more absenteeism.

Currently, there is no real consensus over how much THC in an individual’s system results in impairment. Alcohol impairment is more clearly defined. For example, federal rules set .04 percent blood alcohol readings as a violation for workers in jobs such as driving trucks or forklifts. Most private companies generally use a range somewhere between .02 and .04 percent. Companies and the medical community, need to figure out what level of THC in an individual’s system indicates that someone is at work in an impaired state.

If a drug test is positive for THC, a medical review officer should verify the results as positive unless the individual has a prescription for medications that can cause a positive test. Some experts have found that it is possible that over time, small amounts of THC in CBD products could build up in an individual’s body to reach detectable levels because THC is not immediately metabolized by the body, and over time, THC will be slowly released. As a result, it is possible to test positive for THC even after you have stopped taking the product. Again, however, none of this is an excuse for a failed test under most state laws.

Marijuana remains on the federal books as a Schedule 1 drug. But, as the laws on marijuana continue to evolve, employers should remain diligent in reviewing drug testing policies to ensure compliance. Given the ambiguity, here are some best practices for employers:

  1. Do not tolerate marijuana use on the job, just as you would not tolerate alcohol use.
  2. Train your managers and supervisors to identify signs of impairment.
  3. Determine which type of testing your company uses, and stay on top of developments in technology of testing, particularly in determining acceptable THC levels.
  4. Understand that testing policies may need to vary by location to remain compliant with state law.

An employment attorney at Barrett McNagny, Taliesin “Tess” P. Anglin works with employers on employment contracts, claims involving the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Fair Labors Standards Act (FLSA), and the Indiana Worker’s Compensation Act. Prior to joining the firm, Tess served as a Senior Law Clerk for the Worker’s Compensation Board of Indiana. She can be reached at


Related Articles

The Green Rush: Cannabis Is a Growing Industry

by Justin Smulison

Connecticut announced it will legalize high-THC cannabis for adult use on July 1, making it the 19th state to do so in the U.S. As of June 2021, 38 states and Puerto Rico have legalized cannabis for medical use.

Cannabis Legalized in Connecticut

Phoning It In

by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

Compelled to Compete

by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Look Out Below

by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Can Employers Legally Require Their Employees to Get a COVID-19 Vaccine?

by Candace E. Johnson

With the COVID-19 vaccine more widely available now, many employers are asking if they can require employees to receive the vaccine and what risks are involved in doing so.

Can Employers Legally Require Vaccines?

What Legalizing Recreational Marijuana Means for Indiana

by Rock Lee

What will marijuana legalization mean for business, past conviction, and beyond?

Legalizing Marijuana in Indiana


by Joanna Barsh, Lauren Brown, and Kayvan Kian

Burden, blessing, or both?


Paid Leave

by Best Lawyers

Eight attorneys from across the country weigh in.

Paid Leave

The Employment Pandemic

by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Destiny Fulfilled

by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

Announcing the 2022 Best Lawyers: The Employment Law Issue

by Best Lawyers

Featuring the top legal talent from The Best Lawyers in America, Best Lawyers: Ones to Watch in America and “Lawyer of the Year” recipients for Labor and Employment Law, Workers’ Compensation Law, ERISA Law and Ethics and Professional Responsibility Law.

Best Lawyers Employment Law Publication

NYC Pay Transparency Law Gets New Start Date

by Justin Smulison

This historic law regarding pay transparency in New York City originally scheduled to take effect last week was rescheduled to Fall 2022.

NYC Stand Resolute on Pay Transparency

Avon Calling

by Rebecca Blackwell

Nostalgia-soaked childhood memories of the neighborhood "Avon lady" can mask an insidious reality: Multilevel marketing companies are often little more than polished Ponzi schemes. My experience is illustrative.

Multilevel Marketing Is Not Employment

Alice Tseng - Toronto 2021 Lawyer of the Year

by Best Lawyers

Cannabis Law Toronto, ON

Alice Tseng

Biometric Privacy: It’s Not Just an Illinois Issue

by Kenn Brotman and Molly K. McGinley

How BIPA Litigation May Impact Companies Outside of Illinois

Blue fingerprint that's reflective with black background

What Do Your Clients Want, Anyway?

by Emilia Levisay

Law Firm Strategies to Best Serve Clients.

Sticky notes on black chalk board that says quality, cost, and efficiency

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Best Lawyers: Ones to Watch in Canada 2023

by Best Lawyers

The year 2023 marks the second edition of Best Lawyers: Ones to Watch in Canada, highlighting professionals earlier in their legal careers all across Canada.

Blue background with white stairs formed out of lines

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

All Eyes to the Ones on the Rise

by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch in America™ tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright

by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022

Press and Publicity: How Television and Social Media Impact Legal Careers

by Justin Smulison

In recent years, with social media giving minute by minute reporting, many lawyers are finding themselves thrust into a spotlight they never planned for. How are lawyers grappling with unexpected stardom, media coverage and merciless influencers?

Close up of camera at news station