Weed at work: What Delaware employers need to know about new law

On Friday, April 21, 2023, Delaware Governor John Carney allowed House Bill 1 and House Bill 2 to be enacted into law without his signature. The two pieces of legislation removed all state-level civil and criminal penalties from marijuana possession up to one ounce and created a highly regulated industry to conduct recreational marijuana sales in the state. So what does the legislation’s passage mean for Delaware employers? Will company policies need to be changed to comply with the new laws? The short answer is no.

Rules of the road

The purpose of marijuana legalization is to convert it to a legal intoxicant, similar to alcohol. Just like you can prohibit employees from using, possessing, or being under the influence of alcohol on company premises or during working time, you can prohibit them from using marijuana. You can also continue to conduct preemployment, random, postaccident, and reasonable suspicion testing for marijuana.

Although you may continue to include marijuana in your drug screening protocols, remember that the presence of marijuana metabolites in a blood, saliva, or urine sample doesn’t necessarily demonstrate intoxication the same way a blood alcohol level of .08 or higher does.

So, you should consider using suspicionless marijuana testing if you don’t oppose employee marijuana use during personal time. Of course, employers that receive federal funding and/or employ commercial driver’s license (CDL) drivers may be required to test for marijuana use regardless of state law.

Delaware Medical Marijuana Act