The Legalization of Marijuana and How it Impacts the Workplace

Twenty-nine states and the District of Columbia have legalized medical marijuana, and eight states plus the District of Columbia have legalized the recreational use of marijuana. However, marijuana use remains illegal under federal law. The conflicts between state and federal laws raise numerous questions for employers, such as whether an employer must accommodate an employee’s workplace or off-duty use of marijuana, whether an employer may enforce a drug-free workplace policy, and how to respond to state laws allowing the use of marijuana in light of federal law prohibiting such use. Below are some answers to questions most frequently asked by employers struggling with these and other issues.

How can states pass laws allowing for medical and recreational marijuana if marijuana is illegal under federal law?
Under federal law, marijuana remains classified as a Schedule I drug under the Controlled Substances Act (CSA) and is illegal for any purpose. Even though marijuana is illegal for any purpose under the CSA, the enforcement of the CSA is within the discretion of the federal government. Under the Obama administration, federal agencies such as the Department of Justice deemphasized the enforcement of marijuana laws in states with medical marijuana laws. However, on Jan. 4, 2018, President Trump’s Attorney General, Jeff Sessions, announced his intention to place more emphasis on enforcement of federal marijuana laws in these states.

Under current state marijuana laws, can employers still test for marijuana?
Yes. There generally are no restrictions limiting an employer’s ability to drug test for marijuana, although employers may be limited in possible disciplinary action that may be taken, based on state laws.

Do I have to accommodate an employee’s use of medical marijuana?
Generally, no. Under the laws of most states that allow for medical marijuana, employers are not required to accommodate employees’ use of medical marijuana. In addition, many state courts have found that employers may apply zero tolerance policies and terminate an employee for even off-site, after-work use of medical marijuana. However, in some states, medical marijuana may be protected by statutes prohibiting employers from discriminating against employees for their use of medical marijuana. Some states may also require employers to engage in an interactive process with the employee to determine if the employee can safely perform his or her assigned duties. Employers should consult with legal counsel before taking adverse action against employees’ use of medical marijuana.

Do I have to accommodate an employee’s use of recreational marijuana?
Again, generally, no. Employers are not typically required to accommodate employees’ use of recreational marijuana, as it remains a federally controlled substance. Some state laws specifically state that employers are not required to accommodate such use. However, employers should become familiar with the laws of their particular state before taking adverse action against an employee who legally uses marijuana recreationally.

Does that mean I can legally terminate an employee who tests positive for marijuana?
It depends. Whether an employer may lawfully terminate an employee under state law depends on the state where the employee works. Some state laws prohibit employers from discriminating against medical marijuana patients who test positive for marijuana. Other state laws prohibit employers from discriminating against medical marijuana cardholders. In states without such protections, an employer most likely may terminate an employee for failing a drug test. Remember, however, employers are not required to permit the use, possession, or impairment of employees during working hours.

What if the employee is in a “safety-sensitive” position, such as installing flooring or driving a forklift or a truck?
In most states, employers are not prevented from drug testing employees in safety-sensitive jobs for marijuana. If a job is covered by federal Department of Transportation regulations, employers can and are often required to test for marijuana. Employers also should keep in mind that the Occupational Safety and Health Act’s (OSHA’s) General Duty Clause requires employers to provide a safe workplace for their employees. This could mean that if an employer has knowledge of employee marijuana use that it arguably may not be able to assert that it is providing a safe workplace.

How can I determine if an employee is “impaired” at work because of marijuana use?
Usually, through observation. While employment policies often prohibit employees from using drugs or being impaired at work, there is currently no drug test (other than alcohol tests measuring blood alcohol concentration) that can tell an employer whether an employee is “impaired” based on the concentration level of marijuana in an employee’s system. Some state laws have attempted to set standards for marijuana impairment, but most do not. Many employers train their supervisors to recognize observable signs of drug use, impairment, or impairment related to motor skills or decision making.

Could I stop testing for marijuana?
Many employers have made that decision, but others such as federal and state contractors and those with Department of Transportation and other “safety-sensitive” positions may not be able to be so lenient. Consult with legal counsel to see what options may be available.

What steps can I take now?
Educate yourself and update your policies. Employers should review state laws on medical and recreational marijuana use and make sure their policies are compliant with those laws. Employers’ policies on drug use and testing should set forth clear definitions on items such as “marijuana,” “cannabis,” “medical marijuana,” “recreational use,” “after hours,” “under the influence,” or any other terms used in the policy. Most drug-free workplace policies will prohibit activities such as use and/or possession at work, and prohibit use to the extent it interferes with performance or otherwise poses a danger to the employee or others. Employers should consult with legal counsel to ensure their policies are compliant with applicable federal and state laws.

Barbara Dunn O’Neal is a Partner with the Associations and Foundations Practice Group at Barnes & Thornburg where she concentrates her practice in association law and meetings, travel, and hospitality law. She can be reached at 312.214.4837 or barbara.dunnoneal@btlaw.com. John F. Kuenstler is a Partner in the Chicago and Los Angeles offices of Barnes & Thornburg and a member of the Labor and Employment Department. He can be reached at 312.338.5924 or john.kuenstler@btlaw.com.

This article shall not be considered legal advice. In all cases, groups should consult their legal counsel.