Marijuana Use, State Law and the Workplace: Weeding through the Confusion

Following the 2016 general elections on November 8, 2016, seven states passed new marijuana laws, bringing the total to 28 states, plus the District of Columbia, that now permit medical or recreational marijuana usage.

Although the number of individual states that have passed marijuana laws continues to grow, marijuana use is still prohibited by Federal law, specifically the Controlled Substances Act. See 21 U.S.C. §812(c).

Because marijuana use is now both federally prohibited and state sanctioned, in more than half of U.S. jurisdictions, it has created lots of confusion about how to handle drug policies in the workplace. Many employees have mistakenly assumed that because the state where they work has decriminalized marijuana usage, they no longer have to adhere to their company’s policies governing drug use. That assumption could not be further from the truth. But, how far from the truth depends on the state where the employee works, as different jurisdictions seem to offer varying levels of protections for employees who use marijuana on or off-duty.

Although federal precedent in this area is still developing, the current case law in many states makes clear that state-sanctioned marijuana laws do not invalidate employer substance abuse policies or the employer’s right to discipline employees that violate those policies. Regarding medical marijuana usage, specifically, the current body of jurisprudence suggests that employers have fairly broad rights to take adverse actions against current employees who use marijuana, and even prospective employee applicants, even if the employee or applicant is using it for medical purposes and such usage is protected by state law.

Washington and Colorado states, for instance, have both ruled on whether the statutes on medical marijuana usage bar an employer from taking an adverse action against an employee or prospective employee who failed a drug screening. Both states have ruled that state-sanctioned medical marijuana usage does not shield employees from discipline or even termination. See Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 171 Wash.2d 736, 760 (2011) and Coats v. Dish Network, LLC, case nos. 12CA0595, 12CA1704 (Co. Ct. App. April 25, 2013). Courts have also held that marijuana users are not qualified individuals with a disability under the American Disability Act, and are therefore not entitled to anti-discrimination protections under the law.

The body of case law surrounding recreational marijuana use and employment law protections for employees is even scanter. However, the case law seems to suggest that employers are given wide latitude to police workplace drug use, and can continue to manage workplace substance abuse/testing without concern that they are violating state laws.

Because marijuana usage and the employment realm are and will continue to be, a burgeoning topic, it is important to stay informed about the most current laws in your jurisdiction. Although an employer has the discretion to implement a zero-tolerance policy on drugs in the workplace despite marijuana being state sanctioned, there may be some limitations on when an employer can take an adverse action based on the law and the facts and circumstances of the case at hand. In some states, a business is allowed to terminate an employee just for him or her having a positive drug test. In a small number of states, however, the law prohibits management from firing employees because of failing a marijuana drug screening unless it can prove the employee’s use of marijuana also impaired his or her ability to perform the employee’s duties.

Because of the converging, sometimes conflicting, laws, regulations, and even court decisions at the federal and state level, it creates uncertainties for employers and employees alike on complying with the law. It is, therefore, important that businesses, especially those in states that permit medicinal or recreational marijuana use, educate themselves on the law and develop a specific drug-use and drug-testing policy that makes clear the employee’s and the employer’s rights. In addition to addressing state laws, the policy should take into account any federal rules that might apply, such as those that govern federal entities and federal contractors, and other industry limitations that may apply.

If the employer is free from federal mandates and industry standards, it should take caution to craft a policy tailored to the work environment where the employees work and the positions they hold. If for instance, the employees work in low-risk jobs it may be acceptable to permit medical marijuana usage if the jurisdiction where the business entity exists permits it. Apply your policies uniformly and consistently, or else an employee may bring a claim against you that you are drug testing in a discriminatory manner in violation of Title VII of the Civil Rights Act of 1964.