Recreational Marijuana in Maryland? What Employers Need to Know

By Fiona W. Ong - Shawe Rosenthal LLP

November 16, 2022

So, many people, including my son, are rejoicing because the voters in Maryland approved recreational marijuana (which Maryland refers to as “cannabis”) last week. Employers, however, are perhaps not quite so excited – and may be confused about what that  actually means for the workplace. While we don’t yet have all the answers, let’s talk about what we do know.

Is Recreational Cannabis In Effect Now? First of all, individuals may not start legally lighting up for fun at this point. The voter-approved constitutional amendment permits recreational use by those age 21 or older starting July 1, 2023. Another cannabis law passed by the General Assembly this past session allows individuals to grow up to two plants per household, and to share cannabis with other adults without payment or trade, also starting July 1, 2023. But for those who are not installing grow lights in their homes or who don’t have friends with access, they will need to wait until the State sets up its highly regulated recreational cultivation and distribution system – and until then, buying cannabis for recreational purposes in Maryland will still be illegal.

Will Employees Be Able to Use Recreational Cannabis (Once It’s Permitted)? The new constitutional amendment, the new cannabis law and the current law don’t directly address employee use of recreational cannabis. The new cannabis law referenced above establishes some rules that have a workplace connection:

•    Cannabis or hemp products must be added to the existing ban on smoking in any indoor place of employment under the Clean Air Act. Employees who make complaints to or participate in Clean Air Act proceedings before the State are protected from adverse employment action.
•    All individuals may not smoke cannabis, and drivers may not consume cannabis, in a vehicle on any public road. To the extent that employees drive as part of their job responsibilities, this would apply to them (in addition to the fact that they should not be smoking/imbibing while on the job!).

We anticipate that there will be a bill proposed in the next General Assembly session (which starts in January 2023) to provide workplace protections for the off-duty use of recreational cannabis. We also anticipate that the bill will state that employees will not be able to use or be under the influence of cannabis while on duty. In addition, we would hope and (through our work with the Maryland Chamber of Commerce) will advocate for exceptions to protected off-duty use of recreational marijuana by certain employees, similar to the laws in other states. These exceptions typically include where such off-duty use is prohibited by law, regulation, or federal contract, or where the employee performs a safety-sensitive position.

Can Employers Discipline for Off-Duty Recreational Use? Currently, the personal use of recreational cannabis is a civil offense (similar to a traffic ticket) – so it’s still illegal, and employers can take disciplinary action based on an employee’s recreational use, even off-duty, for now. And even after July 1, 2023, there is no statutory protection for off-duty recreational use – yet. Unlike other states, Maryland does not have any law protecting employees from adverse employment actions based on legal off-duty conduct, so Maryland employers can discipline, up to and including termination, for any off-duty conduct. But stay tuned for the next General Assembly session!

Is There Any Impact on Workplace Testing? No. Employers are permitted to test for the use of alcohol and controlled substances, as long as the testing is done in compliance with Maryland law. This includes testing for cannabis.

Can Employers Consider Marijuana-Related Convictions for Purposes of Hiring or Continued Employment? With regard to all convictions, we suggest that employers only consider those that are related to the job in question. The EEOC has stated that the use of convictions to disqualify applicants generally may have a disparate impact on certain minority populations. In order to limit that disparate impact, the EEOC’s position is that an employer may use criminal history information to make employment decisions only when it is job related for the position in question and consistent with business necessity.  To meet this standard, a criminal conduct must be recent enough and sufficiently job-related to be predictive of performance in the position in question.  The EEOC’s guidance identifies three factors to consider in making this assessment:

1.    The nature and gravity of the offense or offenses;
2.    The time that has passed since the conviction and/or completion of the sentence; and
3.    The nature of the job held or sought.

By the way, the new cannabis law also allows for individuals to request that certain drug-related offenses be expunged (i.e. cleared) from their criminal background. If expunged, employers will not be able to ask about or use those convictions for employment purposes.

What About Medical Cannabis? At this time, while the use of medical cannabis is legal in Maryland, there is no law that protects medical cannabis users in the workplace. For the past several years, there have been bills that sought to provide workplace protections for the authorized off-duty use of medical marijuana – but these have all failed. At this time, the Maryland Medical Cannabis Commission offers this FAQ on its website:

Q: My employer tests for drug use including cannabis. Can they test me if I am a medical cannabis patient? Can they fire me if I use medical cannabis?
A: Maryland law does not prevent an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).

But whether off-duty use must be permitted as a reasonable accommodation under the Americans with Disabilities Act and state anti-discrimination law has not yet been litigated in Maryland. Some courts in other states have found such an obligation under the medical marijuana laws in those states. Thus, any employer with an employee seeking to use medical cannabis off-duty as a reasonable accommodation for a disability should consult with employment counsel.

Bottom Line. We expect further developments as the smoke clears on this new world of recreational cannabis and we’ll keep you updated. But for now, employers can still choose to prohibit (or not) the off-duty use of recreational marijuana by employees.

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