In recent years, a handful of states have enacted employment discrimination protections for recreational marijuana users that purport to create limitations on how an employer may use the results of an employee's positive drug test. These new legal restrictions place employers in the difficult position of forgoing reliance on the objective results of a positive drug test in favor of subjective indicia of intoxication when making employment decisions. An employer that fails to identify and remove an intoxicated employee from the workplace may be exposed to claims by third parties and employees should an accident occur. But an employer that mistakenly finds that an employee is intoxicated in the workplace may be exposed to claims by that employee for unlawful discrimination on the basis of recreational marijuana use.

This article provides a brief overview of federal and several states' laws concerning the recreational consumption of marijuana. It then summarizes the implications of that landscape in terms of employee drug testing. Finally, this article provides practical tips that may reduce the risk of liability for employers as a result of a changing legal landscape.