Drug Policies up in Smoke: What Legalization Means for Delaware Businesses

On April 23, Delaware became the 22nd state in the country to legalize marijuana for recreational use. With the passage of the new law, Delaware employers face new challenges and questions. This article is intended to offer some answers.

The Law

The change in the law results from the passage of two bills—HB 1 and HB 2. Gov. Carney, who had previously vetoed similar bills, refrained from exercising his veto power and instead chose to let the bills take effect without his signature.

HB 1 removes all penalties for use or possession of a “personal use quantity” of marijuana and marijuana accessories. It also provides that adults 21 years of age and older may share a “personal use quantity” of marijuana and may possess, use, display, purchase, or transport accessories and a “personal use quantity” without penalty. The law does specify that, when in a vehicle, these items must not be readily accessible to anyone inside the vehicle. “Personal use quantity” of marijuana means one ounce or less of leaf marijuana and equivalent amounts of marijuana product in other forms.

HB 1 prohibits individuals from selling marijuana, regardless of the quantity. Marijuana in any quantity may not be gifted contemporaneously with another transaction—meaning a business could not offer free marijuana with the purchase of goods or services. Consumption in a moving vehicle or in an area accessible by the public remains unlawful, as does the growing, manufacturing, and cultivation of marijuana.

Weed in the Workplace

Just because recreational marijuana is legal does not mean it’s allowed in the workplace. Employers with a drug-free workplace policy will still be able to enforce it. Just as you can decline to hire smokers, employers in Delaware may legally exclude individuals who use marijuana recreationally. This can be done with the standard pre-employment drug screen. Of course, just because it can be done does not mean that it’s a good choice for every employer. Some Delaware employers elect not to screen for cannabinoids for a variety of reasons, including that they simply cannot find enough staff and do not want to exclude any viable candidate.

Employees have no legal right to consume or possess marijuana during working time. Just as employers can prohibit their workforce from smoking cigarettes or drinking alcohol during the workday, they can prohibit employees from consuming marijuana products. Similarly, employers can prohibit employees from possessing marijuana while at work.

If an employee appears to be impaired or intoxicated during working time or in working areas, employers should act promptly. Ideally, two or more individuals would observe the employee’s behavior and document their observations. If an employer reasonably concludes that an employee is impaired, they may be removed from the workplace, even if a drug screening is not performed. Similarly, employers who wish to conduct random or post-accident drug testing may discipline or terminate an employee who tests positive for marijuana, provided the employee does not have a medical marijuana card.

Medical Marijuana

When considering how to address recreational marijuana in the workplace, Delaware employers should be mindful of the prohibition against discrimination based on the use of or licensure for medical marijuana. In Delaware, employers may not discriminate against an applicant or employee because the employee has a medical marijuana card. Unlike candidates who use marijuana recreationally, medical-marijuana cardholders may not be precluded from employment based on their status as cardholders or because they use medical marijuana. Thus, an employee with a medical marijuana card who tests positive for cannabinoids in the pre-employment drug screening may not be excluded from consideration unless the employer would lose a monetary or licensing-related benefit under federal law or federal regulations by hiring the candidate.

Next Steps

There are several steps employers can take now to address the potential impacts of legalization:

• Communication is key. Employers may want to consider communication to employees that possession, consumption, and impairment are prohibited.
• Policy amendments. Employers also may want to consider updating or amending their drug-free workplace policy to specifically address the use of recreational marijuana.
• Adjust practices. Employers may want to evaluate whether they want to continue to screen for marijuana in the initial, pre-employment drug screen. This can be done annually to determine whether the employer is losing candidates as a result of legal marijuana use.
• Consult counsel. Experienced employment counsel can guide employers through the complicated (and still-changing) landscape of legalization and can offer specific policies and practices appropriate to the particular workplace.