Support for the legalization of marijuana has reached a new high, with 60 percent of Americans in a recent Gallup Poll saying marijuana use should be legal. Further evidence of this support can be seen in the growing wave of state laws permitting medicinal and recreational marijuana use.
Through a combination of legislation and ballot initiatives, more than half the states have legalized medical marijuana. In addition, measures legalizing the recreational use of marijuana have been approved in eight states and the District of Columbia.
This patchwork of laws can pose problems for employers, especially when juxtaposed with the federal Controlled Substances Act, which still classifies marijuana as a Schedule I illegal drug, according to Douglas R. Steinmetz and Patricia D. Weitzman, partners in the Westport, Conn., office of Verrill Dana, LLP. They explored the subject in an April 26 webinar sponsored by the law firm.
The Department of Justice has addressed the conflict between federal and state laws in a series of memoranda. The first was a 2009 memo that provided guidance for federal prosecutors on how to target the DOJ’s enforcement efforts in ways that make “efficient and rational use of its limited investigative and prosecutorial resources,” specifically by not focusing on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
With further clarifications in a 2011 memo and a 2013 memo, the DOJ said it would continue to enforce the Controlled Substances Act in relation to criminal drug activities, regardless of state laws legalizing marijuana, but would target its resources at the most significant threats. To that end, federal enforcement would focus on certain priorities, including the following:
The 2013 guidance also referenced the “traditional joint federal-state approach to narcotics enforcement,” indicating that the federal government would be likely to take a hands-off approach in those jurisdictions where laws authorizing marijuana-related conduct are backed up by tight regulatory controls and robust state enforcement efforts.
There’s no guarantee that these policies will stay in place under the Trump administration and Attorney General Jeff Sessions, Weitzman said. More guidance may emerge from the Department of Justice as enforcement priorities shift, making the subject more confusing, she added.
So where does that leave employers trying to navigate the mix of state and federal laws and guidance?
According to Weitzman and Steinmetz, the trend toward marijuana legalization doesn’t mean employers have to tolerate drug use or possession in the workplace. Even in a state that allows medicinal marijuana, employers can fire employees for use, possession or impairment at work. Having a marijuana certificate doesn’t shield an employee from termination.
An employee facing disciplinary action for marijuana-related conduct might seek protection under state law, but there are not a great number of cases falling in favor of employees, and courts consistently side with the employer in cases of termination, Steinmetz and Weitzman told Bloomberg BNA. In their rulings, the courts typically rely on the fact that marijuana remains illegal under federal law, Weitzman said.
An example of such a case came from the Colorado Supreme Court in Coats v. Dish Network LLC. The court upheld an employee’s termination for failing to pass a drug test even though the employee had a medical marijuana license and did not use the drug while on the employer’s premises. Although a Colorado law prohibits employers from firing workers for engaging in lawful activities outside of work, the court said off-duty use of medical marijuana didn’t qualify for protection because such use, while legal in Colorado, is prohibited under federal law.
Some state marijuana laws provide more explicit protection for employees. For example, Arizona’s employee-friendly law includes a provision that prohibits discrimination against workers for being medical marijuana cardholders or failing a drug test if their use of medical marijuana occurred outside of work. Not all marijuana laws include nondiscrimination provisions, and even fewer provide protections for employees who fail drug tests.
Weitzman said these varying state provisions create a lack of clarity for employers, especially multistate employers, on questions such as whether or not they can refuse to hire someone who tests positive for marijuana in a pre-employment drug test. “Until the tension between federal and state law is addressed, some of these questions will remain unanswered,” she said.
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