A Haze of Marijuana Laws 16:02, May 18, 2017

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A Haze of Marijuana Laws

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In the November 2016 election, voters in several states approved medical and recreational marijuana laws. Arizona was the only state to reject a marijuana initiative. Recreational marijuana is now legal in 8 states and the District of Columbia, while medical marijuana is legal in 28 states and the District of Columbia. But this doesn’t mean that employers have to condone the use of marijuana drug at work.

Recreational Marijuana

Voters in California, MaineMassachusetts, and Nevada (State Question No. 2) approved recreational marijuana initiatives. In general, employers have the right to prohibit the use of it in the workplace under most recreational marijuana laws, including the new ones.

California’s law adds a new Health and Safety Code provision, section 11362.45(f), to say that it doesn’t restrict:

The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.

Section 2454(2) of Maine’s law says:

This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.

The Massachusetts initiative, Question 4, specifically provides that it “would permit employers to prohibit the consumption of marijuana by employees in the workplace.

As the Boston Globe reported:

[E]mployers will be on solid legal ground if they fire an employee for testing positive for using the drug, said Adam Fine, an attorney who was closely involved with the legalization campaign.

“We did not want recreational marijuana users to feel like they had employment protections,” said Fine. “That was not the intent of this law.”

Section 4, part 2 of Nevada’s law (see p. 27) says that the law does not prohibit a “public or private employer from maintaining, enacting, and enforcing a workplace policy prohibiting or restricting” any of the actions that the law now makes legal.

Medical Marijuana

Voters in Arkansas, Florida, Montana, and North Dakota approved medical marijuana initiatives.

Most states that have legalized medical marijuana still don’t provide protections for employees, either because (1) the medical marijuana laws themselves allow employers to prohibit the use of marijuana at work or (2) the use of marijuana is still illegal under the federal Controlled Substances Act. In addition, US Department of Transportation regulations prohibit the use of marijuana, and the federal Drug-Free Workplace Act of 1988 requires employers to maintain a drug-free environment in order to become federal contractors or to receive federal funding.

A few states do have limited protections for employees. In an ABA Journal article called “Employers and workers grapple with laws allowing marijuana use,” G.M. Filisko notes:

Connecticut, Illinois, Maine and Rhode Island are among the few [states] that have passed laws protecting medical marijuana patients from employment discrimination on the basis of their pot use . . . Arizona and Delaware bar employers from discriminating against registered medical marijuana patients, including those who have been found to have the drug in their system, unless they use or possess marijuana or are under its influence on the job during work hours.

Employers’ Options

Drug screening: Employers should make sure that their drug-testing policy is clear to employees and is applied consistently. According to the National Institute on Drug Abuse, the THC (delta-9-tetrahydrocannabinol) in marijuana can stay in a person’s system for days or weeks. This can cause a problem when an employer wants to fire an employee for using marijuana during non-working hours, because some states prohibit employers from firing employees for things that they do away from work. But in states that allow termination if the employee’s off-duty conduct was illegal, an employee may be fired for using marijuana even in a state where the use is legal.

For instance, the Colorado Supreme Court held in 2015 that Dish Network could fire a paraplegic employee for his off-duty use of marijuana to control muscle spasms, even though his use was legal in Colorado, because Colorado’s statute didn’t override the federal prohibition on marijuana use.

Although employers sometimes choose to tighten their drug-testing policies after marijuana laws pass, the Denver Post says that employers in some industries are loosening their restrictions:

When Colorado legalized recreational marijuana last year, employers across the state increased their drug testing, said Curtis Graves, an attorney for Mountain States Employers Council, referencing a workplace survey at the time. A year later, and with an unemployment rate below 5 percent, some employers have loosened the reins.

“We’ve seen a number of employers, particularly in hospitality … who are actually omitting THC from a pre-employment drug screen,” he said.

The market might dictate a further shift in the future.

Accommodation: In states where an accommodation may be required, employers will have to carefully consider the employee’s job duties and whether the employee’s use of marijuana has put the employer on notice that the employee might be disabled. Although the Americans with Disabilities Act (ADA) does not require an accommodation based only on marijuana use, it does recognize disabilities, like glaucoma, that an employee might be using marijuana for. The ADA can bring other issues into play, such as the protection of the employee’s medical information and the issue of how far an employer can investigate an employee’s medical condition.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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