Rhode Island Legalizes Recreational Marijuana and Protects Off-Duty Use for Employees

June 09, 2022

Rhode Island Governor Dan McKee signed a bill on May 25 legalizing recreational marijuana in the state. The law, which took effect immediately, prohibits basing adverse employment actions on off-duty marijuana use, unless certain limited exceptions apply.

The new law generally prohibits employers from terminating employment or taking any disciplinary action against an employee “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”

There are, however, a few exceptions to this general rule. If off-duty use is prohibited by a collective bargaining agreement, or the employer is a federal contractor or subject to a federal law or regulation under which the employer’s failure to terminate or discipline an employee would cause the employer to lose a monetary or licensing benefit, then the employer can impose necessary ‎limitations on its employees. And, of course, working under the influence removes any job-related protections.

Notably, unlike some state laws, Rhode Island does not require a showing of on-the-job impairment, which should ease the burden when establishing the “under the influence” threshold.

The law also contains a safety-sensitive exception, which applies to any job, occupation, or profession that is “hazardous, dangerous or essential to public welfare and safety.” For these positions, employers may implement policies that prohibit the use or consumption of cannabis within 24 hours prior to a scheduled work shift or assignment. Under the law, the types of positions that qualify for this exception include, but are not limited to, those that require the operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation, use of explosives, public safety first responder jobs, and emergency and surgical medical personnel. Given the broad scope of the exception, it will fall to the courts to test the contours.

For unregulated positions or positions that do not qualify for the law’s safety-sensitive exemption, employers may permissibly prohibit employees from (1) using or possessing cannabis in any workplace or location while an employee is performing work, including remote work; or (2) working under the influence of cannabis. Therefore, employers may continue to implement drug-free workplace policies that prohibit the use or possession of cannabis in the workplace or performing work under the influence of cannabis.

The law also provides for automatic expungement of certain civil violations and criminal convictions related to the possession of marijuana. Records will be expunged pursuant to procedures and timelines that will be determined by the judge overseeing the expungement hearing, but all eligible records will be expunged before July 1, 2024.

Under the law, employers cannot require an employee to disclose a sealed or expunged offense unless otherwise required by law. Employers should also be mindful of an existing Rhode Island law, which affords applicants for employment the right to deny the existence of an expunged offense.


Rhode Island has joined an increasing number of states that are limiting employer discretion when it comes to basing adverse employment actions on lawful, off-duty use of marijuana. The Rhode Island law, however, creates a few gray areas that employers should be mindful of as they implement updates to their drug-related policies. For example, the law leaves open whether employers can permissibly impose zero-tolerance policies for salaried safety-sensitive roles, which are arguably always “on the clock,” such that the imposition of a prohibition on marijuana use 24 hours before a scheduled shift would effectively preclude all use.

In addition, the law’s use of an exemplary list of safety-sensitive positions affords employers (absent additional regulatory guidance) with some discretion to determine whether other roles may fall within the definition. Finally, the law does not provide for a private cause of action and does not impose civil or criminal penalties for disciplinary actions or termination decisions that violate the law’s requirements.

These ambiguities may become clear following litigation or through further legislative action. However, in the meantime, Rhode Island employers should review their drug use policies and procedures to ensure compliance with the law’s requirements.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

W. John Lee

August W. Heckman III

Washington DC
Jonathan L. Snare