Delaware.

Information provided is current as of December 21, 2025, and companies are encouraged to consult with legal counsel on these types of complex matters.

Delaware - State Specific Information

Cannabis Legalization Timeline in Delaware

Medical Marijuana

Delaware legalized medical marijuana in 2011 under Title 16 of the Delaware Code. This established a framework for qualified patients to access cannabis for therapeutic purposes, creating the foundation for employer considerations regarding medical cardholders.

Recreational Marijuana

The Delaware Marijuana Control Act of 2023 marked a significant shift in the state's cannabis policy, legalizing recreational use for adults. This legislation introduced new challenges for employers who must now differentiate between medical and recreational users while maintaining workplace safety standards.

Possession and Personal Use Regulations

Under current Delaware law, adults aged 21 and older may legally possess:

• Up to one ounce of marijuana flower
• Equivalent amounts of marijuana products, including concentrates and edibles

The law permits sharing small amounts between consenting adults. However, there are notable restrictions that employers should understand:

Prohibited Activities:

• Home cultivation remains illegal in Delaware
• Public consumption is strictly prohibited, including in parks, businesses, and vehicles
• The public use ban applies to all consumption methods: smoking, eating, and vaping cannabis

State Regulatory Oversight

The Office of the Marijuana Commissioner (OMC) serves as Delaware's primary regulatory agency overseeing cannabis-related matters. Employers seeking clarification on state regulations or compliance requirements should consult this office for the most current guidance.

Employer Rights and Drug-Free Workplace Policies

Delaware maintains strong protections for employers seeking to enforce drug-free workplace environments. The state's approach balances employee rights with legitimate business and safety concerns.

Testing Authority

Delaware employers retain broad authority to conduct drug testing under various circumstances:

• Pre-employment testing: Employers may screen candidates before hiring
• Random testing: Periodic unannounced testing is permitted
• Reasonable suspicion testing: When employees exhibit signs of impairment
• Post-accident testing: Following workplace incidents

Employment Decisions Based on Test Results

For recreational cannabis users, employers may legally:

• Refuse to hire applicants who test positive for THC
• Terminate employees based on positive THC test results
• Enforce policies prohibiting cannabis use that affects job performance

Safety-Sensitive Positions

Delaware grants employers particularly broad authority regarding safety-sensitive roles. For positions involving the following, employers may prohibit cannabis use both on and off duty:

• Heavy machinery operation
• Handling hazardous materials
• Law enforcement duties
• Healthcare responsibilities

This expanded authority recognizes the heightened safety requirements in certain industries and the potential risks associated with impaired workers in these roles.

Privacy Requirements and Confidentiality

Delaware law imposes strict privacy obligations on employers regarding drug test results and related medical information:

Disclosure Limitations

Test results may only be shared with individuals who have a legitimate need to know, including:

• Human resources personnel directly involved in the matter
• Supervisors participating in disciplinary processes
• Legal counsel when necessary

Procedural Requirements

Employers must adhere to established procedures for:

• Obtaining proper consent before testing
• Informing employees of their rights throughout the process
• Explaining testing procedures clearly and completely

Recommended Employer Procedures

While Delaware does not mandate a written drug-free workplace policy, implementing one is strongly recommended to protect against discrimination claims and ensure consistent enforcement.

Policy Development Best Practices

Effective workplace cannabis policies should:

1. Clearly distinguish between medical cardholders and recreational users - Different protections may apply to each group
2. Define safety-sensitive positions explicitly - Document which roles have enhanced restrictions
3. Outline testing procedures comprehensively - Include all circumstances under which testing may occur
4. Establish clear consequences - Detail disciplinary actions for policy violations

Workplace Impairment Recognition Training

Delaware authorities encourage employers to implement Workplace Impairment Recognition training for supervisors. This training is particularly valuable because a positive THC test alone does not prove "current" impairment—THC can remain detectable in the body long after its impairing effects have subsided.

Trained supervisors can better:

• Identify signs of active impairment
• Document observable behaviors appropriately
• Make informed decisions about reasonable suspicion testing
• Protect the organization from wrongful termination claims

State Employee Procedures

Delaware state employees must adhere to the state's drug-free workplace policy. Testing for state workers follows the same framework as private employment:

• Pre-employment screening
• Reasonable suspicion testing
• Post-accident testing
• Random testing where applicable

All test results for state employees are maintained with strict confidentiality.

Employee Protections and "Right to Weed" Considerations

Delaware is not considered a "Right to Weed State" in the traditional sense. While cannabis is legal for adult use, significant employer protections remain in place.

When Employers Can Take Action

Employers retain the right to terminate or refuse to hire individuals when:

• Cannabis use impairs their ability to perform job duties
• Use poses safety risks, especially in safety-sensitive positions
• Employees violate drug-free workplace policies

Key Limitations on Employee Protections

• Employers are not required to permit on-duty cannabis use under any circumstances
• Drug testing policies remain enforceable
• Off-duty use protections are limited, particularly for safety-sensitive roles

Drug Testing Program Requirements

Delaware's drug testing framework establishes clear expectations for both public and private employers.

State Employee Requirements

State workers must follow drug-free workplace policies with testing permitted under specific conditions. All results must be kept strictly confidential.

Private Employer Responsibilities

Private employers bear responsibility for:

• Creating comprehensive drug and alcohol testing policies
• Clearly communicating policies to employees
• Establishing procedures for reasonable suspicion testing
• Implementing post-accident testing protocols
• Maintaining confidentiality of all test results

Practical Recommendations for Employers

To navigate Delaware's cannabis laws effectively, employers should consider the following steps:

1. Review and update existing policies to reflect current state law
2. Consult with legal counsel on complex matters, as recommended by state guidance
3. Train supervisors on impairment recognition and proper documentation
4. Communicate policies clearly to all employees and job applicants
5. Document all testing procedures and maintain consistent enforcement
6. Stay informed about regulatory changes from the Office of the Marijuana Commissioner

Conclusion

Delaware's evolving cannabis landscape requires employers to stay informed and proactive in their policy development and enforcement. While the state provides significant latitude for maintaining drug-free workplaces, employers must balance these rights with privacy requirements and appropriate distinctions between medical and recreational users.

By implementing clear policies, training supervisors effectively, and consulting with legal experts when needed, Delaware employers can maintain safe, compliant workplaces while respecting the changing legal status of cannabis in the state.