As of April 23, 2023, recreational cannabis became legal in Delaware in quantities appropriate for personal use for those 21 and older. The law specifically states that it does not impact or impose any requirements or restrictions on employers with respect to terms and conditions of employment. To that end, employers can continue to prohibit cannabis under their drug policies with exceptions for medical users, which are covered below. You don’t need to let employees use cannabis at work, and you can still require that most employees or applicants test negative for THC (the active compound in cannabis).
If a positive THC result is currently grounds for discipline, termination, or a decision not to hire under your drug policy, you may want to consider whether that provision continues to be in your best interest. That policy may force you to discipline or terminate top performers or pass on exceptional applicants who use cannabis legally on their personal time.
Whether or not you change your policies, now is a good time to remind your employees where you stand on cannabis use and under what circumstances, if any, they could be tested and disciplined for a positive test result.
Employers should be aware that Delaware already had a medical cannabis law, which protects people who use medical cannabis from employment discrimination. Employers may not refuse to hire an applicant or discipline or terminate an employee who uses medical cannabis—based on a positive drug test result—unless they possessed, used, or were impaired by cannabis at work. There are exceptions for safety-sensitive positions and if the employer would otherwise lose a federal license or federal money.