Employers throughout the United States are advised to review existing drug policies and drug testing practices to ensure compliance with the laws of the state(s) in which they operate, including policies regarding off-duty use of marijuana for both medical and recreational purposes. Marijuana remains an illegal drug under federal law and, as such, the Americans with Disabilities Act (ADA) does not require employers to accommodate off-duty use, even when permitted under state law. Some states, however, protect an employee’s off-duty use, provided impairment is not observed while on the job. The court in a recent case in Massachusetts held that an employer had to provide reasonable accommodation to an employee for off-duty use of medical marijuana. Employers, however, have more discretion in their approach regarding the use of recreational marijuana – in fact, Maine is the only state that offers protections for employees in this regard.
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