May 8, 2023Alerts

Weed at Work

On Friday, April 21, 2023, Governor John Carney allowed House Bill 1 and House Bill 2 to be enacted into Delaware law without his signature. These two pieces of legislation removed all state-level civil and criminal penalties from simple marijuana possession up to one ounce, and created a highly regulated industry to conduct recreational marijuana sales in Delaware.

So what does the passage of this legislation mean for Delaware's employers? Will company policies need to be changed to comply with these new laws? The short answer is NO.

Rules of the Road

The effect of marijuana legalization is to convert it into a legal intoxicant, similar to alcohol.  In the same way that employers can prohibit employees from using, possessing, or being under the influence of alcohol on company premises or during working time, they can prohibit marijuana. Employers can also continue to conduct pre-employment, random, post-accident, and reasonable suspicion testing for marijuana.

While employers may continue to include marijuana in their drug screening protocols, it is essential to remember that the presence of marijuana metabolites in a blood, saliva, or urine sample does NOT necessarily demonstrate intoxication in the same way that a blood alcohol level of .08 or higher does. Consequently, employers should consider the utility of suspicionless marijuana testing, if they do not oppose employee use of marijuana during personal time. Of course, employers who receive federal funding and/or employ CDL drivers may be required to test for marijuana use without regard to state law.

Delaware Medical Marijuana Act

While the legalization of marijuana does not change employer or employee rights, the Delaware Medical Marijuana Act (DMMA) did. In considering next steps, make sure that your policies are compliant with the DMMA, which prohibits discrimination against any medical marijuana card holder  merely because of the presence of marijuana metabolites. The DMMA permits discipline of employees who use, possess, or are under the influence of marijuana at work. The DMMA includes exceptions for employers who would lose funding as a result of accommodating a medical marijuana card holder (i.e. federal contractors).

Public Sector Considerations

It is extremely important for public sector employers to keep in mind that the Fourth Amendment generally prohibits suspicionless drug testing of most employees; there are exceptions for police, and certain other categories of safety sensitive positions.  Before implementing any random, suspicionless drug-testing program, public employers should consult with legal counsel.

A Solid Policy Is Essential

Even though marijuana legalization has not changed the employment law landscape, employers should still have a solid drug and alcohol policy in place. What should it include? A prohibition against using, possessing, or being under the influence of any intoxicant while at work—including alcohol, illegal drugs, and legal drugs that impact the employee’s ability to safely perform the essential functions of the employee’s job. Employees who use or are prescribed legal drugs that impair their ability to safely perform their essential job duties should be directed to your company’s reasonable accommodation policy. The policy should also address testing procedures, and make clear that any employee who is believed to be under the influence will be transported to the testing site and then home—employees who are under the influence should not be driving themselves anywhere.  Finally, there should be a process for managers who observe signs of intoxication to document that evidence. As noted above, a positive marijuana test does not prove intoxication, so the testimony of a supervisor is often extremely important.

With a solid policy in place, if you have an employee who appears to be under the influence at work, you can have them tested and fire them if they test positive.

As always, if you have questions about this legislation or your company's current policies concerning controlled substances, I strongly encourage you to reach out to us by phone or email.


Lauren E.M. Russell, Esq.
[email protected]

Additional Members of Young Conaway's Employment Law Team:

Michael P. Stafford, Esq.
[email protected]

Jennifer M. Kinkus, Esq.
[email protected]

Elise K. Wolpert, Esq.
[email protected]