TOP TIP: Recreational Marijuana in Maryland

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As most Marylanders probably know, on July 1, 2023 recreational marijuana use will become legal in Maryland. We have some tips for employers in navigating this new territory.

Under the new Maryland law (2022 MD H.B. 1), individuals 21 or older are permitted to use marijuana while off duty so long as they do not report to work under the influence (or, of course, smoke weed on the job). The law also includes some restrictions on off-duty use; it is impermissible to smoke in public areas, motor vehicles, and private property where use of marijuana is prohibited.

Given these scant restrictions, employees may be under the impression that their employer has no right to impose penalties for off-duty legal use of the drug that is found after a drug test. Such employees are WRONG!

Employers remain free to prohibit on-the-job marijuana use or intoxication and to require drug testing of employees, with discipline or termination permitted for a positive test (regardless of whether there is on-duty impairment). Thus, off-duty use may lead to employment consequences if a workplace drug test is positive for THC.

Employers should be aware (if they already do not understand this) that THC levels detected by current drug tests do not demonstrate intoxication, only marijuana use within the past few days, weeks or even months. People metabolize the drug differently. Thus, in this new world of legalized use, a positive drug test is not necessarily a sign of marijuana use during or just before working hours.

Given all of this, we have the following tips for employers:

  • Employers should make clear that on-the-job use of marijuana or impairment during working hours is strictly prohibited.
  • Employer that intend to take action based on a positive drug test, regardless of when marijuana is used, would be wise make this clear to employees NOW.
  • Employers may want to consider whether to reserve marijuana testing to a segment of positions, such as those with safety-sensitive duties. If it is a “some not all” approach to testing, employers would be wise to make this clear and provide an explanation for the distinctions chosen to avoid creating the impression that the decision is arbitrary.
  • Employers may choose to reserve testing to situations involving suspected impairment. If this is the case, it would be prudent to train managers about the signs of impairment. These may include, but not be limited to, red eyes, poor coordination, delayed reaction times, increased appetite, sleepiness or lethargy, anxiety, panic, hallucinations, odor of drugs (e.g. marijuana), excessive talkativeness or liveliness, memory impairment, and impaired judgment.