Employers are undoubtedly aware of the ever-changing landscape
of marijuana laws across the country. Complicating matters for
larger employers is that these evolving statutes are creatures of
state law with little uniformity across jurisdictions. One area
that can be particularly vexing is an employer’s ability to
take action against employees who test positive for marijuana under
zero-tolerance drug policies.
When marijuana was first legalized under state medical marijuana
programs, many states permitted employers to terminate employees
testing positive for marijuana, even if they were legal card
holders under a state program. However, states that later enacted
medical marijuana programs began including anti-discrimination
provisions prohibiting employers from taking action against
employees based on their status as lawful medical marijuana users.
States that currently have such anti-discrimination provisions
include Arizona, Arkansas, Connecticut, Delaware,
