Currently, 18 states and the District of Columbia have the broadest allowances for marijuana use, legalizing medical and adult recreational use; a handful of other states have passed legislation allowing medical marijuana.
Overall, 47 states have some form of cannabis allowance, only Idaho, Kansas and Nebraska do not have any public programs for marijuana use. But marijuana laws and programs remain a highly contested topic and often see modifications as political power changes. (See also: State Marijuana Laws from 2019 Map)
Earlier this year, Mississippi overturned a 2020 medical-use marijuana measure, which could make the state’s already limited laws even tighter. South Dakota, which currently allows medical marijuana use, ruled earlier this year that a 2020 measure for nonmedical usage was unconstitutional and is awaiting appeal. Colorado, the first state to legalize marijuana in 2012, will limit high-potency concentrates in 2022 in an effort to decrease teenagers’ access to cannabis. But other states, including Alabama and Virginia, saw expansions of their marijuana programs within the last 18 months and Connecticut was the latest state to legalize recreational use of cannabis with the passage of SB 1201 in June.
Despite most states approving its use, marijuana is still considered a Schedule I illegal substance by federal law. But pressure is mounting to legalize cannabis nationally as the industry grows. Insurance lenders, testing labs and retailers are eager to keep up with the increasing demand (some businesses were even offering free weed as an incentive for getting vaccinated against COVID-19). Legal cannabis sales increased 45 percent last year and are predicted to reach $41 billion by 2026, but until there are federal policies, states will be left to determine how they will navigate the growing business.
There are 36 states and the District of Columbia that allow medical-use marijuana, while 11 states permit high cannabidiol (CBD) and low THC level products for medical reasons in limited situations or as a legal defense. According to data from the National Conference of State Legislatures (NCSL), these “low THC, high CBD” programs are not considered “comprehensive” cannabis programs.
For a state’s marijuana programs to be comprehensive, they must protect medical marijuana users from criminal penalties; provide access to marijuana through home cultivation, dispensaries or some other system; allow a variety of strains or products, including those with more than “low THC”; allow either smoking or vaping of some kind of cannabis products, plant material or extract; and be not a limited trial program, like the one in Nebraska.
Marijuana and the Workplace
According to NCSL, 13 states provide medical cannabis anti-discrimination employee protections. Of those states, only one, Nevada, requires accommodations for medical marijuana and offers anti-discrimination protections for recreational cannabis use. Maine previously provided recreational protections, but the statute was repealed in 2017.
But as cannabis use continues to expand, other states have proposed and considered marijuana-in-the-workplace legislation. Wisconsin considered legalizing recreational cannabis use and including employment protections. New Jersey’s AB 10 would require employers to prove how an employee’s use of medical marijuana outside of work impaired or interfered with the individual’s ability to do their job before taking disciplinary action. Other states, like Alaska, Illinois and Indiana, have considered reducing employment barriers for individuals with previous convictions of low-level cannabis offenses and what employers may or may not allow within the workplace regarding marijuana use.
High on the Highway
As marijuana becomes more accessible across the nation, states are grappling with the safety risks that the drug can pose. The NHTSA’s 2013-2014 National Roadside Survey revealed that while the presence of alcohol use in drivers over the last several decades has decreased, the occurrence of marijuana has risen. There was a 4 percent increase in weekend nighttime drivers who tested positive for marijuana use and, among fatally injured drivers who were tested, marijuana use more than doubled from 8 percent in 2007 to 18 percent in 2016.
Testing and determining impairment is difficult when it comes to drug use. Marijuana affects individuals differently and can stay in a person’s system for weeks, which could trigger a roadside test without causing impairment. Some states have launched oral fluid testing pilot programs. The most common marijuana detection methods are through blood, urine or saliva, adding to the complexity of verifying intoxication and impairment. While there is a national level of impairment for drunk driving, there is no equivalent for marijuana or other drugs, leaving the management of marijuana-impaired driving up to the states.
Six states ¯ Washington, Montana, Illinois, Ohio, Pennsylvania and Nevada – have specific per se laws for THC that consider a person to be impaired after reaching or surpassing a set limit, ranging from 1 nanogram to 5 nanograms. Colorado is unique in that it has a reasonable inference law, which allows drivers who are charged to introduce a defense to show they were not impaired, for instances in which THC is identified in a driver’s blood at levels of 5ng/ml or higher. Eleven states have zero-tolerance laws for certain drugs, including cannabis’ THC; South Dakota’s zero-tolerance law applies to drivers under the age of 21.
Driving with cannabis in the vehicle is very similar to “open container” laws that limit alcohol consumption in motor vehicles and is considered illegal when the cannabis product has been opened or has a broken seal and is not within the trunk of the vehicle.
Information is current as of June 2021.