Know your rights as an employer in terms of legal marijuana use

Marijuana buds in a jar
Hotel management should work closely with labor and employment counsel to understand and follow applicable state laws to ensure management’s ability to provide safe environments for both guests and employees. Photo credit: OpenRangeStock / iStock / Getty Images Plus

The legalization of medical marijuana use in 33 states and recreational marijuana use in 11 states has led to hazy implications for the hospitality industry. Many employers are unsure of their rights when it comes to limiting and/or prohibiting employee marijuana use. Vast variances in state laws exist and, to make matters worse, cannabis remains listed as a Schedule I illicit substance under the Controlled Substances Act. Accordingly, hospitality industry employers are often at a loss when determining how to balance state and federal law with employee and guest safety.

While a hotel industry employer may not agree with legalized cannabis use, it must become familiar with medical and recreational marijuana laws in the states in which the company operates in order to avoid litigation. For instance, each state that has legalized the use of medical marijuana has one of three types of medical marijuana accommodation laws:

1) Accommodation of off-site medical marijuana use;

2) No accommodation of off-site medical marijuana use; or

3) No requirement one way or the other.

Adding even more confusion to the myriad state legalized marijuana laws, Nevada and New York City have banned pre-employment drug testing for marijuana, and Maine now prohibits employers from discriminating against employees based on marijuana use regardless of whether it is for medicinal purposes or merely recreationally.

While marijuana use accommodation laws give rise to difficult human resources issues, it is ultimately hotel management’s responsibility to ensure guest safety despite employee legalized marijuana use. Fortunately, none of the state laws prohibiting employment discrimination based on medical and/or recreational marijuana consumption require that an employer accommodate on-site medical or recreational marijuana use. Therefore, hotels may strictly prohibit an employee from working while high.

Additionally, hotels may protect themselves from undue hardships caused by on-site or off-site employee marijuana use as well as continue to protect their guests and employees from direct threats to their safety. For instance, a hotel lawfully may have a zero-tolerance policy prohibiting a valet’s off-site use of marijuana to ensure the safe operation of vehicles as well as insurability.

Regardless, hotel management should work closely with labor and employment counsel to understand and follow applicable state laws to ensure management’s ability to provide safe environments for both guests and employees.

Gregory Hearing is a shareholder at GrayRobinson (Tampa) in the Employment & Labor group. He may be contacted by email at [email protected] or by phone at 813-273-5000.