Over the past decade we have seen significant changes throughout the country at the local and state level related to medicinal and recreational marijuana, with the majority of states legalizing some form of THC or cannabis. Marijuana is still illegal at the federal level, which governs the Department of Transportation rules and regulations for many positions across the country.
With the president recently pardoning federal marijuana-related misdemeanors, HR professionals need to ensure we embrace not only the changes laws and regulations, but the changing attitudes towards recreational and medicinal marijuana use.

Marijuana Usage Laws by State
New York
Ohio Changes in 2023
Ohioans voted to approve Issue 2 last month. As passed, it allows for the possession of up to 2.5 ounces of marijuana or 15 grams of marijuana extract by adults beginning on December 7th. It also permits adults to begin home-cultivating cannabis on that date. The law also establishes a licensing system to provide for retail cannabis production and sales.
Nebraska Embraces Medical Marijuana Amidst Legal Challenges
Nebraska’s voters approved two separate medical marijuana initiatives, collectively known as Initiative Measures 437 and 438, with a clear mandate of over 70% in favor. Initiative 437 permits qualified patients to possess and use medical cannabis, specifically allowing up to five ounces for the treatment of medical conditions, provided they have a recommendation from a healthcare practitioner. Initiative 438 establishes the Nebraska Medical Cannabis Commission, which will oversee cannabis regulation in the state.
To comply with Nebraska’s “single subject” rule, these ballot measures were split into two questions to ensure each addressed only one central issue. However, the validity of these measures is currently under legal scrutiny. Opponents, led by former state senator John Kuehn and Nebraska Secretary of State Bob Evnen, have filed legal challenges, questioning the validity of petition signatures that secured the measures on the ballot. Lancaster County District Judge Susan Strong is set to rule on the case soon, and her decision could ultimately be appealed to the Nebraska Supreme Court. Until the courts issue a final decision, the legality of medical cannabis in Nebraska remains uncertain.
Rejection of Recreational Marijuana in Florida, North Dakota, and South Dakota
In contrast to Nebraska’s embrace of medical marijuana, voters in Florida, North Dakota, and South Dakota rejected measures that would have legalized recreational cannabis. Florida’s initiative nearly passed with nearly 56% support—just shy of the 60% threshold required for constitutional amendments. This narrow margin suggests that support for recreational marijuana legalization is significant but not yet sufficient in Florida, signaling the possibility of future attempts.
Massachusetts: Psychedelics Remain Unlawful
In Massachusetts, a measure to legalize natural psychedelic substances, such as psilocybin, mescaline, and ibogaine, was defeated. The initiative aimed to allow adults over 21 to grow, possess, and use these substances, which have been subjects of recent studies for potential mental health benefits. While national interest in psychedelics is growing, Massachusetts, along with other states, remains cautious about legalizing their use.” (Forbes)
By State
Medicinal Use & ADA
Medical marijuana is legalized in the majority of the states throughout the country. Medical providers can and do prescribe marijuana for medicinal use. We should fully understand reasonable accommodation, essential functions, and additional considerations under the American with Disabilities Act, along with other local and state laws and regulations.
Drug Testing
Certain states and cities have now banned preemployment drug testing for THC for many positions in the state or locale. Ensure you have a clear understanding of any evolving laws and regulations. Also consider DOT regulations, at times you might have separate drug testing policies for DOT and non-DOT employees in the same organizations. Expectations and policies should be communicated.
Criminal Background Checks
Laws and regulations continue to evolve on criminal background checks, related to prior charges for marijuana related crimes. This includes second chance legislation. There are a variety of laws and regulations across the country defining the dos and don’ts of criminal background checks. Research and outsourcing will ensure proactive approaches to criminal background checking.
Policies & Procedures
With evolving legislation, make it a priority to updates any policies and procedures in relation to drug-free workplaces, preemployment testing, reasonable suspicion, post-accident testing, etc. Regardless of the laws and regulations, there should be a zero-tolerance policy in place any employee being under the influence or any drug or alcohol in the workplace. Implementing an Employee Assistance Program (EAP) is recommended for organizations large and small. Train supervisors on enforcing the policy and procedures and communicate any changes throughout the organization.” (Burr SHRM Article)
The Americans with Disabilities Act until recently, ruled against reasonable accommodation in relation to medicinal marijuana use. Employer-Friendly decisions include Washburn v. Columbia Forest Products, Inc., Roe v. Teletch Customer Care Mgmt., Johnson vs. Columbia Falls Aluminum Co., and Ross v. RagingWire Telecommunications, Inc. Three out of the four rulings for employers happened in pro-marijuana states: California, Oregon and Washington. However, along comes Barbuto vs. Advantage Sales and Marketing, LLC; “the Massachusetts high court addressed whether an employer must accommodate medical cannabis use, since state law permits medical marijuana use and prohibits disability discrimination…The court held that an exception to the employer’s drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee’s physician determines that marijuana is the most effective treatment for the employee’s disability and that any alternative medication permitted by the employer’s drug policy would be less effective.”
Vermont Ruling
On February 14, 2024, a judge of the U.S. District Court for the District of Vermont dismissed a plaintiff’s Americans with Disabilities Act (ADA) discrimination and failure-to-accommodate case, holding that his medical marijuana usage was not protected under the ADA (Skoric v. Marble Valley Regional Transit District).
Medicinal Marijuana & Workers Compensation
On March 17, 2023, the Commonwealth Court of Pennsylvania issued a decision regarding employee use of medical marijuana in the workers’ compensation context. The decision in Fegley v. Firestone Tire & Rubber (Workers’ Comp. Appeal Bd.) addresses an issue of first impression. The court held that an employer’s failure to reimburse an employee’s out-of-pocket costs for medical marijuana to treat his work-related injury was a violation of the Pennsylvania Workers’ Compensation Act (“WC Act”). The decision is significant for Pennsylvania employers. Given this decision, Pennsylvania employers could be subject to penalties under the WC Act if they do not reimburse employees for medical marijuana use—even though marijuana is illegal under federal law and cannot be prescribed by any doctors (https://www.jdsupra.com/legalnews/pennsylvania-court-holds-that-it-is-2936018/).
Drug-free Workplace Act
The most important piece of legislation regulating federal contractors and grantees is the Drug-free Workplace Act of 1988 (PDF | 204 KB). Under the act, a drug-free workplace policy is required for:
- Any organization that receives a federal contract of $100,000 or more
- Any organization receiving a federal grant of any size
At a minimum, such organizations must:
- Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use, and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy.
- Establish a drug-free awareness program. This program should inform employees of the dangers of workplace substance use; review the requirements of the organization’s drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs (EAPs)that may be available.
- Ensure that all employees working on the federal contract understand their personal reporting obligations. Under the terms of the Drug-Free Workplace Act, an employee must notify the employer within five calendar days if he or she is convicted of a criminal drug violation.
- Notify the federal contracting agency of any covered violation. Under the terms of the Drug-free Workplace Act, the employer has 10 days to report that a covered employee has been convicted of criminal drug violation.
- Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty or requiring the offender to participate in an appropriate rehabilitation or counseling program.
- Maintain an ongoing good faith effort to meet all the requirements of the Drug-free Workplace Act throughout the life of the contract. Covered organizations must demonstrate their intentions and actions toward maintaining a drug-free workplace. Their failure to comply with terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future government funding.
OSH Act
Duty to provide employees with a workplace, “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Substance abuse is such a hazard.
DOT “Medical Marijuana” Notice
Implications of Legalization of Recreational Marijuana
Despite three states—Arkansas, North Dakota and South Dakota—rejecting in 2022 the legalization of adult recreational marijuana use, three other states—Maryland, Missouri and Rhode Island—legalized such use.
“I think the legalization of marijuana is inevitable nationwide; it’s just a matter of how and when,” said Dillon McGuire, an attorney with Pashman Stein Walder Hayden in Holmdel, N.J.
Recreational marijuana is now legal in 21 states plus the District of Columbia.
Other Considerations
- Policy & Procedure Revisions
- Review State & Local Legislation
- Drug Free Workplace Act Considerations
- Employee Assistance Program
- DBL & FMLA
- ADA
- Reasonable Suspicion Training for Supervisors
- Communicate with the Workforce
- DOT Regulations
- Policy Signature
Frequently Asked Questions
Is there a federal requirement for businesses to put up a Drug-Free Workplace poster?
No. There is no such federal requirement. Some businesses that receive contracts or grants from the federal government use posters to help fulfill some of the educational requirements under the Drug-Free Workplace Act of 1988.
Matthew Burr will present The State of Marijuana in the Workplace during the 2025 STI/SPFA Annual Meeting in Hilton Head Island, S.C. For more information, please visit meetings.stispfa.org.