Recreational marijuana is legal in Maryland as of July 1, 2023, with the new law allowing adults 21 or older to use the drug while off duty as long as they don’t report to work while under the influence.
The law also has some restrictions making it illegal to smoke in public areas, vehicles and on private property where use of marijuana is prohibited.
However, employers are still free to prohibit on-the-job marijuana use or intoxication and they can still require drug testing of employees, according to law firm Shawe Rosenthal. Positive drug tests can also still lead to discipline or termination.
One thing to note is that levels of THC, the psychoactive component of marijuana, detected by current drug tests do not indicate intoxication, only that marijuana was used sometime within the past few days, weeks or months, since “people metabolize the drug differently.”
In short, a positive drug test doesn’t necessarily mean an employee used marijuana just before work or that they’re currently intoxicated.
4 things employers may want to address immediately
According to Shawe Rosenthal, employers:
- should make clear that on-the-job use of marijuana or impairment during working hours is strictly prohibited
- would be wise to make it clear that they will take employment action based on a positive drug test, regardless of when marijuana is used
- may want to consider whether to reserve marijuana testing to a segment of positions, such as those with safety-sensitive duties, and
- may choose to reserve testing to situations involving suspected impairment.
If an employer wants to reserve testing for suspected impairment, then “it would be prudent to train managers about the signs of impairment,” including:
- red eyes
- poor coordination
- delayed reaction times
- increased appetite
- sleepiness or lethargy
- odor of marijuana
- excessive talkativeness or liveliness
- memory impairment, and
- impaired judgment.