Dear Littler,

I’m in charge of organizing our holiday party this year. To keep things civil, we’re limiting alcohol and reminding employees that although our state has legalized the recreational use of marijuana, there is to be no pot at the potluck. I figured now was a good time to recirculate our company policy on substance use, but a colleague just asked whether it covers psychedelics. Is she joking? What the dickens is this about?

 –Trying Not to Be a Scrooge in 24 states that have legalized recreational marijuana

Dear Trying Not to Be a Scrooge,

Federal, state, and local laws governing drug and alcohol use and their effects on the workplace are rapidly changing and sometimes in conflict. To help you wrap your head around this evolving topic, here’s a brief overview of substance use issues employers dealt with in the past, those employers are presently addressing, and emerging issues employers may need to grapple with in the near future.  

Workplaces Past – Smoking

Readers may recall the days of old when workplaces were full of cigar and cigarette smoke and other tobacco products. As rates of tobacco use and smoking have decreased and knowledge of the effects of secondhand smoke have increased, all but six states (Kentucky, Mississippi, North Carolina, Texas, Virginia, and Wyoming) explicitly prohibit smoking in all or some indoor private sector places of employment. Increasingly, these indoor smoking prohibitions also include prohibitions on vaping indoors. Further, some of these laws allow for designated indoor smoking areas, while others explicitly prohibit indoor smoking areas. Some states also prohibit smoking within a certain distance of the entrance to some or all places of employment.

In addition to prohibitions on smoking in the workplace, many states require employers display “no smoking” signs prominently in all areas where smoking is prohibited and/or where smoking is allowed, if designated smoking areas are permitted under the applicable law. Similarly, some states explicitly require that ashtrays not be provided in the workplace.

Nevertheless, while employers can prohibit tobacco use in the workplace, many states have laws that prohibit discrimination based on off-duty conduct such that employers cannot discriminate against current or prospective employees who smoke, vape, or otherwise engage in legal use of tobacco products while they are not working.

Workplaces Present – Alcohol and Marijuana

Employers can prohibit the use of alcohol in the workplace and prohibit employees from being under the influence of alcohol while working.¹ This is particularly true for employers that allow (and provide) alcohol at work events. If alcohol will be served at an event, there are simple ways to reduce the likelihood that attendees overindulge. For example, consider hiring a third-party bartender and/or issuing employees a limited number of drink tickets. A cash bar might also discourage excessive drinking. Perhaps limit the types of alcohol offered to beer and wine, and serve food at the event. Employers should set concrete hours for the event and ensure that non-alcoholic beverages are available. Employers could also coordinate designated drivers or sponsor rides home as needed.  

Marijuana use has become an increasingly hot-button issue around the country. Federal law prohibits marijuana use for both medical and recreational purposes. However, the vast majority of states permit medical use in some form and almost half of states further permit recreational use.  Along with recent legalization of marijuana in various jurisdictions, we are seeing more restrictions on drug testing for marijuana. Some states prohibit employers’ ability to drug test prospective employees or current employees absent a concern that they are impaired. For example, in New York, an employer may only take action related to recreational cannabis use in certain instances, such as to comply with another law, to avoid violating federal law, or if the employee “manifests specific articulable symptoms while working that decrease or lessen an employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place…” Elsewhere, Philadelphia, for example, prohibits employers from requiring a prospective employee from submitting to testing for the presence of marijuana as a condition of employment, except for certain positions such as law enforcement, commercial drivers, and other professions.

Moreover, because individuals can test positive for marijuana on certain drug tests even when they are not impaired or under the influence at the time of the test, employers must exercise caution in utilizing certain drug tests to prohibit off-duty conduct. For example, some states, such as Massachusetts, prohibit discrimination based on the use of marijuana for medical purposes under their disability anti-discrimination statutes. Other states, such as New York, Rhode Island, and soon to be California also prohibit discrimination based on the use of cannabis off the job and away from the workplace.

New state laws will require employers to utilize certain types of drug tests if they are testing for marijuana. For example, in California, starting on January 1, 2024, an employer is prohibited from taking adverse action or otherwise penalizing an employee based upon an employer-required drug screening test that has found “nonpsychoactive cannabis metabolites in their urine, hair, blood, or bodily fluids.”

Even with marijuana legalization, employers can always prohibit the use and possession of marijuana, and other drugs, in the workplace and mandate that employees not be under the influence of marijuana or other drugs during working hours and at work-sponsored events.

Workplaces Yet to Come – Psychedelics

And finally we turn to your colleague’s question about psychedelics, the new frontier in drug legalization. While the legalization of psychedelics is still limited, their use for medical and recreational purposes is an increasing point of discussion.

In 2020, Oregon voters approved the Psilocybin Services Act. The Act permits the therapeutic use of psilocybin by qualifying individuals age 21 and over with specified mental health conditions. These individuals may only obtain psilocybin services after first completing a preparation session with a licensed facilitator and can only access psilocybin at a licensed service center during an administration session. This law took effect on January 1, 2023. Of interest to employers, the Act expressly states that it cannot be construed to amend or affect state or federal law pertaining to employment matters.

In Colorado, voters approved a new law, effective January 1, 2024, permitting the cultivation, sale, and administration of certain natural psychedelic medicines, including psilocybin and psilocin, the psychoactive chemicals in psychedelic mushrooms. The new law decriminalizes the possession, manufacture, consumption, and distribution of natural medicine and associated paraphernalia. The Colorado Department of Regulatory Agencies will develop a training and licensure program for healing centers and facilitators to cultivate, test, and administer certain psychedelic substances as a form of natural medicine. Under the new law, people age 21 and over may also cultivate, possess, and store these substances for personal use if cultivation is in a private residence and the plants and fungi are secured from access by people under 21.

In the employment context, the new Colorado law does not require employers to allow or accommodate the use, consumption, possession, transfer, display, transportation, or growing of natural medicines in the workplace. A few other localities, including Portland, Maine, Minneapolis, and San Francisco, have passed ordinances decriminalizing psilocybin. Further, a number of state bills are pending that would similarly decriminalize the use of psilocybin. Notably, most of these bills would not require employers to accommodate the use of psilocybin.

In summary, substance abuse concerns continue to provide challenges for employers. Employers should continue to stay apprised of new laws and revisit their drug and alcohol-free workplace and testing policies on a regular basis.