CLIENT ALERT: The Delaware Marijuana Control Act and a Review of Employers’ Rights and Obligations Regarding Employee Cannabis Use

On April 23, 2023, Delaware adopted the Delaware Marijuana Control Act (the “DCMA”). The DCMA makes Delaware the 22nd state to legalize recreational marijuana.

The DCMA does not directly impact employers’ rights and responsibilities regarding employee cannabis use. The DCMA expressly states that employers are not required to permit or accommodate the use or possession of marijuana while the employee is at work. Further, employers are permitted to maintain policies restricting the use of marijuana at work and to discipline employees who are under the influence of marijuana at work. Determining whether an employee is under the influence of marijuana remains challenging, however, as there still is no definitive objective testing standard for being considered “under the influence,” and thus, employers largely are informed by subjective assessments of behaviors and appearance.

Notably, employers still must comply with existing Delaware and federal law relating to cannabis use, including:

• The Delaware Medical Marijuana Act (the “DMMA”), which prohibits discrimination in employment based on an individual’s status as a medical marijuana cardholder. The DMMA also prohibits taking adverse employment action against a cardholder based solely on a drug test that is positive for marijuana. Notably, this protection does not apply to individuals who use cannabis recreationally.
• The Delaware Persons with Disabilities Employment Protections Act (the “DPDEPA”), which may require employers to consider allowing marijuana use during non-work hours as a reasonable accommodation for a disability.
• The Americans with Disabilities Act (the “ADA”), which prohibits discrimination against individuals based on a history of substance abuse or enrollment in a rehabilitation program.
• Title VII of the Civil Rights Act of 1964 (“Title VII”), which requires that employers ensure that their drug testing programs do not single out any employee(s) for testing or discipline based on their race, sex, religion, or national origin. Further, employers must take care that their policies, including drug-free workplace policies, do not have a disparate impact on any protected group.

Although the DCMA does not significantly alter the legal landscape for employers or require that employers tolerate employee cannabis use, as a practical matter employers may need to review and make changes to their policies. Now that cannabis is legal in Delaware, employers that maintain drug-free workplace policies may find an increase in potential adverse employment actions based on cannabis use and/or drug tests returning positive for cannabis. Some employers—particularly those in industries struggling with staffing shortages—may need to revisit their policies in light of this development. At a minimum, employers should consider and formulate their position on off-duty recreational marijuana use by employees.  In addition, it may be a good time for employers who voluntarily conduct drug testing to evaluate the pros and cons of continuing with testing and/or consider whether to drop cannabis (THC) from their screening panels.

 If you have questions, please contact the Labor and Employment Team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, and Jennifer Penberthy Buckley).

About Potter Anderson

Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm’s practice is centered on corporate law, corporate litigation, intellectual property, commercial litigation, bankruptcy, labor and employment, and real estate.