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Change to Maryland’s Cannabis Laws Raises Questions for Employers

As of July 1st, Maryland law now permits the possession and use of small amounts of marijuana. Unlike some other jurisdictions that have decriminalized marijuana possession, Maryland’s new statute does not directly address the law’s consequences for employers and employees. In the absence of statutory language clarifying the law’s impact on the workplace, many Maryland employers have been left uncertain as to their ability to prohibit, or test for, marijuana use among their employees. 
 
Absence of Employment-Specific Provisions Leaves the Legal Landscape Unchanged
 
Prior to the new law’s enactment, Maryland employers were free to prohibit the use and possession of marijuana in the workplace, as well as to test for marijuana as part of a drug testing program, as long as the testing program complied with procedural requirements set by a state statute. The fact that the new law removing criminal penalties associated with the use of marijuana did not contain any provisions limiting employers’ discretion with respect to drug-related policies means that employers retain the same level of flexibility that was in place prior to the new statute taking effect. 
 
As a result, Maryland employers may continue to enforce policies that prohibit employees from working while under the influence of marijuana, or from possessing or using marijuana on the employer’s property. Likewise, Maryland employers that engage in drug testing may continue to include marijuana among the substances encompassed by a testing program. In doing so, employers must continue to comply with the mandatory procedures applicable to such screening programs, including use of a certified testing facility, issuance of required notices, and the opportunity for employees who test positive to obtain a re-test at their own expense. 
 
Practical Considerations Lead Some Employers to Reevaluate Policies
 
While the new statute does not compel a change to existing policies, a number of employers have used the discussion surrounding the new law as an opportunity to reevaluate their current drug testing program. The increasing prevalence of marijuana use among younger segments of the workforce, coupled with a tight labor market, has led some employers to conclude that the potential negative impact of testing programs on their ability to recruit and retain employees outweighs their benefits, at least with regard to positions that do not involve direct safety concerns. 
 
While the hiring and retention considerations that affect the decision of whether to utilize a drug testing program will vary from one business to another, the recent change decriminalizing marijuana use at the state level does not require employers to make a particular change in such programs, at least until such time as new legislation or court interpretations emerge. 
 
Further Legislation May Be on the Horizon 
 
Maryland employers should not assume that the current legal outlook will continue indefinitely. As noted above, other jurisdictions that have decriminalized marijuana use have enacted specific provisions that prohibit employers from making employment decisions based upon an employee’s off-duty use of marijuana, and it is possible that similar legislation may be taken up by the General Assembly in future legislative sessions. Employers are encouraged to consult with legal counsel both to monitor any future developments on this front and to ensure that their existing policies with respect to drug testing are compliant with current Maryland law.  

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