Policy Shift Ends Marijuana Leniency, So What Now?


Supporters of pot legalization were fired up when U.S. Attorney General Jefferson Sessions ended a lenient approach to federal marijuana enforcement in states that allow the use of marijuana for medical or recreational purposes.

In corporate America, the move may have sparked some debate, but it didn’t ignite any new controversy. For the most part, employers face the same questions as before when deciding how to address drug usage and testing, since workplace policies remain largely unaffected by shifts occurring at the Department of Justice.

Permissive Stance Under Obama

Under President Barack Obama, the Justice Department’s first official move to ease up on pot enforcement came in a memo that Deputy Attorney General David Ogden issued in 2009.

The Ogden Memorandum said it would be inefficient to direct limited federal resources toward the prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with state law, or those caregivers who provide such individuals with marijuana.

In 2011, Deputy Attorney General James Cole issued a follow-up clarification saying the Ogden Memo was not intended to shield large-scale marijuana activities from federal enforcement under the Controlled Substances Act.

Cole issued another memo in 2013 after states began legalizing recreational pot, this time expressing the Justice Department’s expectation that states would implement strong and effective regulatory systems to address any threat the new marijuana laws might pose to public safety, public health, and other law enforcement interests.

The memo said where such robust regulatory systems were put in place, federal prosecutors might not even consider the size or commercial nature of a marijuana operation in such a state.

Sessions Rescinds Previous Guidance

Early in 2018, Sessions issued a new memo that rescinded the previous guidance, saying the Controlled Substances Act and other laws "reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime."

Sessions said specific guidance on marijuana enforcement wasn’t needed, given the DOJ’s "well-established principles" that govern decisions on all federal prosecutions.

Although advocates for marijuana legalization viewed the move as a step backwards, the reality for employers is that nothing has really changed. The DOJ’s enforcement stance has no direct impact on drug testing policies or rules barring pot possession or usage in the workplace.

Before exhaling a huge sigh of relief, keep in mind that pot legalization across several states has been accompanied by an increase in lawsuits testing the extent of employees’ rights and protections with respect to marijuana.

Attorneys familiar with the issue have indicated that employers can fire employees for use, possession, or impairment at work even in states allowing medicinal marijuana (see Shifting Marijuana Laws Leave Employers in a Haze).

But at least one decision has come down in favor of an employee. The top court in Massachusetts held that a qualified medical marijuana user could pursue a disability discrimination claim after she was fired for testing positive for the drug.

Cristina Barbuto, who was terminated by Advantage Sales and Marketing even though she told the employer about her legal medical marijuana use, raised a plausible claim that her discharge violated the state's anti-discrimination law, the Massachusetts Supreme Judicial Court ruled.

In general, however, the courts have given employers wide latitude in fashioning and enforcing workplace drug policies based on the fact that marijuana remains illegal under federal law.

Access our state law chart to learn more about provisions on marijuana use (subscription required).

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