Doctors smoke it, nurses smoke it
Judges smoke it, even lawyers too
So you’ve got to legalize it
And don’t criticize it
— Peter Tosh, “Legalize It”
Although Peter Tosh advocated for legalization of marijuana in 1976, it took 40 years for states to heed the call.
As of April 20, 38 states, the District of Columbia, Guam, and Puerto Rico have approved some form of medical marijuana/cannabis programs. Eighteen states plus the District of Columbia have legalized recreational cannabis, according to the National Conference of State Legislatures.
Approval of marijuana legalization continues to enjoy broad support from Americans. According to a recent Gallup poll, 68 percent of U.S. adults said they back legalizing cannabis. As more states legalize recreational and medical marijuana, employers and employees alike have questions about workplace drug policies and practices that may be outdated in light of recent legislative action.
The federal Controlled Substance Act (CSA) continues to include marijuana as a Schedule I controlled substance — on par with heroin, LSD, and Ecstasy. Schedule I drugs are defined as drugs with no currently accepted medical use and a high potential for abuse.
The MORE Act
On April 1, the U.S. House of Representatives passed legislation that would legalize marijuana nationwide, eliminating criminal penalties for manufacture, distribution or possession. The legislation, dubbed the Marijuana Opportunity Reinvestment and Expungement Act, passed in the House last year, but did not move forward in the Senate.
In addition to decriminalizing marijuana at the federal level, the bill would establish procedures for expunging previous convictions from people’s records and impose a tax on the sale of cannabis products. Although a group of U.S. senators is working to craft similar legalization legislation, prospects for passing a bill in the Senate appear to be low. Democrats would need all of their members plus 10 Republications to overcome a 60-vote hurdle needed to advance to a final vote.
The advancement of medical and recreational marijuana laws has muddied the waters for employers in more than half of the United States. While the CSA views marijuana as a drug with no currently accepted medical use, 38 states disagree and have enacted legislation that specifically recognizes the medical benefit of marijuana.
Even in traditionally conservative Texas, the Compassionate Use Act legalized small quantities of low-THC cannabis for Texas residents who suffer certain incurable neurological conditions, cancer, and PTSD.
The Challenge for Employers
The workplace challenge is obvious. Employers must comply with federal law, as well as the laws of the states in which they do business. When those laws are inconsistent, employers must carefully implement policies that do not adversely impact compliance with other laws.
For federal contractors and the transportation industry, the answers are clearer. The federal Drug Free Workplace Act (DFWA) applies to certain federal contractors and grantees and requires them to maintain a drug-free workplace. Employers subject to the DFWA face stiff penalties for noncompliance, leaving them with no choice but to maintain a drug-free workplace, notwithstanding the fact that marijuana may be legal in some form under state law.
Many state laws legalizing marijuana have carve-outs for federal contractors and grantees to exempt them from compliance with the state law. Special rules also apply to employers in the transportation sector with employees whose jobs are considered safety-sensitive (e.g., pilots, bus drivers, train engineers, truck drivers, and ship captains). The U.S. Department of Transportation has a zero-tolerance policy regarding controlled substances, including marijuana, and imposes mandatory testing provisions.
For non-DOT employers, drug testing is generally governed by state law. Drug testing laws have not always kept pace with marijuana legislation, but some states have implemented new laws. For example, New York enacted the Marijuana Regulation and Taxation Act to clarify that cannabis used in accordance with New York state law is a legal consumable product. As such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.
If an employee tests positive for marijuana, employers must be aware of limitations on the decision to hire or fire an employee. In some medical marijuana states (e.g., Rhode Island and Pennsylvania), employers cannot discriminate against employees “solely” on the basis of their status as a medical marijuana user. In other states (e.g., Minnesota and Delaware), employers are prohibited from terminating employees who test positive for medical cannabis unless they can demonstrate the individual was impaired on the job.
It is vital for employers to be familiar with the current drug testing requirements (if any) in the states where they operate. Employers should maintain a clear drug test policy with defined parameters and expectations. Such policies should be applied consistently to all employees to avoid concerns regarding disparate or discriminatory treatment.
Employers in states with medical marijuana statutes must also be mindful of how such statutes may impact their reasonable accommodation obligations under state and federal law. Recent court decisions have split regarding ADA protections for use of cannabis products. Some courts have recognized increased protections for medical marijuana users, holding that use of medical marijuana recommended by an employee’s doctor can be a “reasonable accommodation.”
Other courts have held that the ADA explicitly permits covered entities to test for the use of illegal drugs. So long as marijuana remains scheduled under the CSA, employers may have defense to claims arising from employees who test positive for marijuana. Nonetheless, many employers are removing marijuana from the list of drugs reportable in drug testing.
Employee handbooks and job descriptions should clearly identify essential duties of each job description and define those that are “safety sensitive.” Employers should also have an established protocol for discussion of accommodation requests to engage the employee in an interactive process.
Careful consideration of state laws in all states in which a multi-state employer operates is essential. Even single-state employers are faced with challenging issues arising when employees vacation in recreational-use states, as marijuana legally consumed in one state can result in a positive test days later in the state of employment.
The current patchwork of state laws legalizing cannabis use, combined with the overlay of federal illegality, puts employers — especially multi-state employers — in a difficult spot. Workplace and public safety, employee privacy, and disability laws further complicate matters. The best company policies are drafted carefully and with the guidance of legal counsel well-versed in cannabis laws.
Please contact us if we can be of assistance.