Delaware in late April 2023 legalized recreational marijuana in the state. What does that mean for employers?
The Delaware General Assembly passed two laws — House Bill 1 and House Bill 2 — that opened the door for adults 21 and older to possess up to one ounce of marijuana, effective immediately.
Of note, the bills were enacted without the signature of the Delaware governor.
“I want to be clear that my views on this issue have not changed. And I understand there are those who share my views who will be disappointed in my decision not to veto this legislation. I came to this decision because I believe we’ve spent far too much time focused on this issue, when Delawareans face more serious and pressing concerns every day. It’s time to move on,” Gov. John Carney said in an April 21, 2023, statement. “I remain concerned about the consequences of a recreational marijuana industry in our state. I’m concerned especially about the potential effects on Delaware’s children, on the safety of our roadways, and on our poorest neighborhoods, where I believe a legal marijuana industry will have a disproportionately negative impact. Those concerns are why I could not put my signature to either House Bill 1 or House Bill 2.”
Recreational Marijuana: State Guide for Employers
Delaware Legalized Marijuana: What Employers Need to Know
Unlike a handful of other states, at this point legalized recreational marijuana in Delaware does not afford employees protection for off-duty use.
Likewise, employers may take adverse action against employees or job seekers for the presence of marijuana in drug screenings. According to the statute:
Nothing in this chapter is intended to impact or impose any requirement or restriction on employers with respect to terms and conditions of employment including but not limited to accommodation, policies, or discipline.
While at this point employers with locations in Delaware may not need to adjust their processes and procedures regarding recreational marijuana, in coming years there could be new laws that require adjustments.
It is worth noting, however, that Delaware does have a decriminalization law regarding marijuana on the books.
Meanwhile, there are protections for employees under Delaware’s medical marijuana law, which has been in place since 2011. Employers cannot discriminate against employees or prospective workers who have a legitimate medical marijuana card, including the presence of THC in a drug test.
Of course, Delaware employers are able to maintain a drug-free workplace.
Related: Legalized Marijuana in Illinois – 5 things for Employers to Know
Legalized Recreational Marijuana in the U.S.
States across the U.S. continue to enact new laws regarding recreational marijuana. On the surface, it brings obvious internal questions for HR teams:
- Should we continue to use a positive test to discipline existing or prospective employees?
- Does taking adverse actions for off-duty use make sense for our organization?
- Are we reducing the applicant pool by refusing to hire someone based on marijuana use?
But in some jurisdictions, there are built-in answers to these questions. Several states have passed laws that protect off-duty use by employees, as well as limiting discipline or adverse action for the presence of marijuana in a pre-employment drug test.
In nearby Connecticut, for example, since July 1, 2022, a positive drug test cannot be used as the lone reason for taking adverse action, unless it would violate federal law, the employee is high at work, etc. However, tests can be performed in safety-sensitive jobs.
Elsewhere, Nevada last summer rolled back its protections. The state Supreme Court in August 2022 ruled that using marijuana was not a lawfully protected activity. Still, employers generally cannot test new employees within the first 30 days of employment.
These vagaries, along the continued expansion of legalized recreational marijuana, add more work for compliance teams beyond the basics of properly displaying updated labor law posters, managing minimum wage rates and accurately applying paid leave laws.
And as is always the case with employment law, each jurisdiction handles legalized recreational marijuana differently. See a few of our blogs for more examples:
Employers with locations in Delaware may not have to take immediate steps to comply with the state’s new law.
However, as outlined above, there are several items for employers to consider with yet another state legalizing recreational marijuana.