Article by Doug Hart, Esq.
As more states make the push to legalize marijuana, employers are increasingly facing challenges related to employee marijuana use. Medical marijuana laws present particular challenges for employers as they raise questions with regard to disability accommodations, at-work use and discrimination—among other matters. So, in this rapidly-evolving space, what do employers need to know? Below is an introduction to some of the key issues.
Marijuana Is Still a Schedule I Controlled Substance—For Now
While states across the country are legalizing both medicinal and recreational marijuana use, marijuana remains a Schedule I controlled substance at the federal level. This means that use and possession are prohibited, and the federal government does not currently recognize any legitimate form of medical use.
However, this could change under the current administration. While former Attorney General Jeff Sessions reversed prior Justice Department guidance trending toward non-enforcement in 2018, in December 2021 the House of Representatives introduced the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act. If passed, the MORE Act would remove marijuana from Schedule I and defer to the states with regard to marijuana enforcement policy. This would almost certainly lead to greater and more rapid state-level legalization.
Medical Marijuana In and Outside of the Workplace
Under state medical marijuana laws, eligible patients can receive marijuana prescriptions for a broad range of medical conditions. Currently, these laws authorize medicinal use for conditions including (but by no means limited to):
- Anxiety disorders
- Cancers
- Crohn’s disease
- Epilepsy
- Glaucoma
- Inflammatory bowel disease
- Multiple sclerosis
- Neurodegenerative diseases
- Parkinson’s disease
- Post-traumatic stress disorder
- Terminal illnesses
- Tourette syndrome
When it comes to respecting employees’ right to use medical marijuana for treatment of these and other conditions while also protecting their workforces (and their companies in general), employers face considerations in three main areas: (i) compliance, (ii) workplace safety, and (iii) hiring and termination.
I. Compliance
Employers face several potential stumbling blocks with regard to medical marijuana compliance. First and foremost, while we are starting to see some uniformity, each state’s laws are different. As a result, in order to accurately assess their compliance burdens, employers need to focus on the specific laws in the state(s) in which they have employees. Of course, employers must also thoroughly address federal compliance considerations as well in order to effectively mitigate their risk of liability.
Examples of the types of medical marijuana compliance issues that employers may need to address include:
- Compliance with state medical marijuana laws (including their anti-discrimination provisions)
- Compliant drug testing in the workplace
- Compliance with the Americans with Disabilities Act (ADA) and other anti-discrimination laws
- Compliance with the Drug Free Workplace Act (for federal contractors and grant recipients)
II. Workplace Safety
In the area of workplace safety, employers must carefully balance their employees’ statutory rights to use medical marijuana with their own legitimate interest in maintaining a safe work environment. With this in mind, companies should review and update their policies and procedures to make clear that employees may not work while under the influence of medical marijuana. In doing so, however, employers must be careful not to overstep and potentially implement policies or procedures that give rise to allegations of discrimination.
While employers can use drug testing to help maintain a safe work environment, many medical marijuana laws leave questions regarding appropriate drug-testing processes unanswered. As a result, employers must be cautious to strike the right balance of respecting their employees’ rights while also adequately protecting their safety.
III. Hiring and Termination
Drug testing and discrimination are also key concerns regarding hiring and termination. Here too, having compliant policies and procedures—and consistently following those policies and procedures—is extremely important. As the legal landscape continues to evolve, employers’ rights and responsibilities will continue to evolve as well, and this means that companies will need to revisit their marijuana-related documentation and protocols on a periodic basis in order to stay ahead of the curve.