Growing Like Weeds: How Employers Should Respond As More States Legalize Marijuana

On November 8, 2016 four more states voted to legalize marijuana. California, Nevada, Massachusetts, and Maine[1] all voted in favor of the legalized use, sale, and consumption of marijuana by adults over the age of 21. Once these laws go into effect, recreational marijuana will be legal for over 20 percent of the country.

Arkansas, Florida, Montana, and North Dakota all voted to legalize medical marijuana, bringing the total to 30 states that will permit at least limited use of cannabis.

Arizona’s ballot initiative to legalize recreational marijuana failed with a 52 percent majority.

Marijuana Remains Illegal under Federal Law

Despite popular support for decriminalization, marijuana is still designated as a Schedule I controlled substance under the federal Controlled Substances Act, which criminalizes the possession, manufacture, distribution, and sale of the drug. Accordingly, employers are not required to accommodate its use under the federal Americans with Disabilities Act.

The Drug-Free Workplace Act requires that all federal grant recipients and federal contractors adopt a zero tolerance workplace drug policy and certify to the federal government that their workplaces are drug free.

State Law

State laws complicate the issue. Several states, including Arizona, Connecticut, Delaware, Maine, Minnesota, Nevada, and Pennsylvania, prohibit employment discrimination against employees solely on the basis that they use medical marijuana, unless doing so would violate federal law or regulations. These statutes prohibit status-based discrimination, and do not appear to preclude adverse action in response to a positive drug test.

Some states, such as New York and Nevada, go much further and require an employer to reasonably accommodate the medical needs of an employee who uses medical marijuana.  For further analysis in these states, consult with legal counsel to determine what may be reasonable under the law.

Notwithstanding these laws, employers may continue to enforce drug-free workplace policies. Where state law includes anti-discrimination or accommodation provisions, employers should engage in a fact-specific inquiry prior to taking adverse action based on an employee’s medical marijuana use.

Lessons from Colorado

Following the legalization of recreational marijuana in 2012, many Colorado companies implemented pre-employment drug testing. Over time, as the labor market grew increasingly tight and the use of marijuana became more acceptable, many employers have shifted to reasonable suspicion and post-incident drug testing. Employers simply could not afford to exclude every candidate who tested positive due to their off-duty smoking or to bear the upward pressure on wages associated with pre-employment testing. Indeed, starting salaries are as high as $12 an hour for many entry-level positions in the Denver metropolitan area at employers who continue to conduct pre-employment drug testing.[2]

Federal grantees and contractors and those hiring for safety sensitive positions should continue to conduct pre-employment drug testing.

Update Drug-Free Workplace Policies

We recommend updating policies to remind employees that, despite state laws permitting the use of recreational and medical marijuana, marijuana is still illegal under federal law and therefore prohibited under the company’s Drug-Free Workplace policy. Remind employees that using, selling, or possessing marijuana or its paraphernalia at work, or having marijuana in their system when reporting to work or undertaking any work for the company will be considered a violation of the Drug-Free Workplace policy and will subject the employee to disciplinary actions to the fullest extent permitted by law.

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Alexander Nemiroff is a partner in the Philadelphia office and a member of the firm’s Employment Law, Commercial Litigation, and Unfair Competition practice groups. He litigates a wide variety of cases before federal and state courts and administrative agencies, including employment discrimination, workplace technology law, wrongful discharge, wage and hour law, and other matters. He has defended employers in unfair labor practice and representation proceedings before the National Labor Relations Board and in labor arbitrations involving discharge, discipline, and contract interpretation. Additionally, he has counseled clients on compliance with all aspects of labor and employment law, including litigation strategy, reviewing and drafting employee handbooks, workplace trainings, hiring and termination issues, wage payment issues, security and management of data, privacy, trade secrets, restrictive covenants, and compliance with state and federal leave laws. Alex can be reached at (267) 602-2040 or anemiroff@gordonrees.com.

Other authors: Laurie Rust, Denver and Surbhi Garg, Denver.

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