As marijuana legalization becomes more common, an increasing number of states are passing laws to protect employees who engage in lawful activities outside of work. Notably, these laws often go far beyond protecting the use of marijuana. They may prohibit employers from taking negative employment action against employees for a wide range of lawful activities that take place outside the workplace, including political activities, lawful recreational activities, and the use of consumables like cigarettes and alcohol. While the larger implications of these laws are a topic for another day, let's consider how they apply to marijuana use among camp employees.
As a starting point, employers are typically well within their rights to prohibit marijuana, alcohol, and drug use at work. If an employee uses marijuana, alcohol, or drugs at work, arrives to work impaired, or returns to work impaired after time off, then the camp can take disciplinary action against them (with the possible exception of the medicinal use of marijuana when it is a reasonable accommodation for a disability).
But what happens if employees lawfully use marijuana outside of work, and their use has no impact on the workplace? In some states, camps can't prohibit employees who are 21 or older from using marijuana outside of work and on their own time. The rationale is that lawmakers have chosen to legalize marijuana and don't want employers punishing employees for engaging in lawful activities outside the workplace.
Based on this same reasoning, some states prohibit testing employees for marijuana. Taking New York as a representative state, the Department of Labor explicitly states that, outside of certain limited exceptions, testing employees for marijuana is illegal. The exceptions essentially say that marijuana testing is still allowed if it's required by another law, such as federal law that requires mandatory drug testing for drivers of commercial vehicles.
In states that have legalized marijuana, recreational use is typically subject to similar restrictions as alcohol, including a prohibition on marijuana use for those under 21. In an FAQ on this topic, the New York Department of Labor explains: "Only the legal use of cannabis by adults over the age of 21 . . . is protected. The illegal use, sale, or transportation of cannabis is not protected." This means that employers likely can take negative employment action against employees under 21 who use marijuana outside of work, since that would constitute an illegal activity.
Taking all this together, Camps should proceed cautiously before making employment decisions based on an employee's lawful activities outside the workplace. In some states, the law is silent and these considerations may be a nonissue. But if your state's law looks similar to New York's, then you should ensure that your application materials, employment policies, and personnel practices don't call for disciplinary action against employees for using marijuana at home or engaging in other lawful activities on their own time.