Student Presentation to analyze status and avenues of workplace protection for employee marijuana use

Despite a number of states legalizing the recreational and/or medical use of marijuana, workplace protections for employees’ legal marijuana use—even while off-duty—are sparse and jurisdiction-dependent. Consequently, many employees who legally use marijuana may still risk discipline, termination, or other adverse action. This presentation will explore various legal pathways for protected use and speculate as to future developments, especially in the context of marijuana’s expected rescheduling.

First, this presentation will provide an overview of states that have created explicit, legislative protections for employee use of marijuana—and those that have explicitly denied such protections. For example, states like California and New York have enacted laws prohibiting employers from discriminating against employees for their legal, off-duty marijuana use, but states like Ohio provide that marijuana legalization statutes impose no duty on employers to tolerate their employees’ marijuana use.

Next, this presentation will discuss state and federal drug testing policies and their treatment of marijuana. Each jurisdiction has different requirements for employer drug tests—some states impose mandatory standards, others only impose such standards on employers who opt into a workers’ compensation drug-free program, and others still broadly allow the practice with few regulations. The states that have legalized marijuana in some capacity also vary on whether they permit marijuana to be tested for at all, and whether and when employers may (or must) take action against employees for their marijuana use. This presentation will provide examples of key state drug policies to illustrate some of the most common approaches to marijuana in employer drug tests.

This presentation will then analyze whether medical marijuana can be protected as a “reasonable accommodation” under the Americans with Disabilities Act (ADA) and analogous state provisions. Since marijuana remains federally illegal, federal courts have refused to hold medical use of the drug to be a “reasonable accommodation,” which would require covered employers to tolerate its use—perhaps even at the workplace—under certain circumstances. While some state courts, such as in Colorado, have issued rulings in line with the federal standard, other states, such as Massachusetts, have found medical marijuana use to be a reasonable accommodation under their own disability discrimination statutes.

Finally, this presentation will examine potential arguments and pathways for employee protection in the face of rescheduling. An Executive Order expediting the rescheduling of marijuana from Schedule I to Schedule III was issued in December 2025, and the Department of Justice (DOJ) and Drug Enforcement Agency (DEA) are expected to promulgate this rule in the near future. This could lead to a reevaluation of medical marijuana use under the ADA, either by congressional amendment or federal court decisionmaking, which could provide nationwide protections for medical marijuana users.

In sum, existing workplace protections for marijuana use are patchwork, and states take a wide range of approaches to the issue. While private employers are often permitted to choose to protect employees’ legal marijuana use, many employers across the nation are not obliged to do this, even in fully “legal” states. This matter can be confusing to employees, who may erroneously believe that because they are using marijuana legally, they are not subject to repercussions. However, rescheduling could open the door to national protections, such as treating medical marijuana use as a “reasonable accommodation” under the ADA.