Update Applicable to:
All employers in the state of Delaware.

What happened?
On April 23, 2023, Delaware became the latest state to legalize recreational marijuana on April 23, 2023, when Governor Carney failed to veto two bills that allow for the legalization of marijuana.

What are the details?
Effective immediately, recreational cannabis is 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 concerning terms and conditions of employment.

To that end, employers can continue prohibiting cannabis under their drug policies, with exceptions for medical users, which are covered below. Employers don’t need to let employees use cannabis at work and can still require that most employees or applicants test negative for THC (the active compound in cannabis).

Medical Cannabis
Employers should be aware that Delaware already has a medical cannabis law that 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.

For more information, please see the links below:

House Bill 1 – House Bill 2

Governor Carney Statement

Article 1 – Article 2

What do employers need to do?
Employers should review the above links against their existing drug and alcohol policy and with legal counsel, make any necessary revisions.

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