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Recreational Marijuana and the Workplace

Since have the passage of the Recreational Marijuana Law (Act 86), employers have been wary on what this means for the workplace.  One question we often hear is “does this mean we need to tolerate employees under the influence at the workplace?” 

Under Act 86, changes were made to the legalization for private possession of marijuana, in small amounts, for those adults who are 21 or older.  From the employer perspective, Act 86 specifically states:

  • Employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
  • Employer may prohibit or otherwise regulate the use, consumption, possession, transfer, display, transportation, sales, or growing of marijuana on their premises;
  • Employer may adopt policies prohibiting the use of marijuana in the workplace; and
  • The law does not create a legal cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees. 

The mention of an employer having to allow usage of marijuana or employees under the influence at the workplace is nowhere listed in the Act. Thus employers are not obligated to make the accommodation(s) to employees choosing to take part of recreational marijuana usage.

From time to time, the term “medical marijuana card” may be referenced at the workplace.  What is it and what do you do with it? The Medical Marijuana Card is an identification card issued by the Vermont Department of Public Health. This verifies written certification received by a physician for approved usage of medical marijuana to treat a health condition and/or disability.  As with the usage of recreational marijuana, employers do not have to accommodate the use of medical marijuana at the workplace, even if being used to treat a specific condition/disability.  That said, if an employer becomes aware of an employee using medical marijuana or has a medical marijuana card, they should engage in an “interactive process” with the employee to determine if they can perform the essential job functions with a reasonable accommodation.  Prior to the employer taking any sort of adverse employee action in this situation, it is recommended you consult your legal counsel.

As best practice, employers may want to consider the following:

  • Drug Related Policy: Consider putting one in place, if you don’t have one already.  Be sure to include (or confirm) it is a drug-free workplace policy that also prohibits the use of marijuana, either recreational or medical.  Be specific and clear as to what the company expectations are.  Prior to distributing this policy to employees, have your employment counsel review the document;
  • Know the law:   Do your research, understand what the use of recreational marijuana means in the workplace;
  • Train your teams:   Train your teams on what to look for and how to document potential under the influence behaviors in the workplace; and lastly
  • Employment Counsel: Have employment counsel ready to call in the event it is needed

Although the law makes it clear that employer’s do not need permit the usage of marijuana in the