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January 29, 2018

Navigating the Shifting Winds of Marijuana Enforcement: A Hazy Issue for Employers

The legal state of marijuana continues to be in flux, potentially creating thorny issues for employers related to drug testing and policy drafting and execution. Though marijuana is illegal under federal law, as of January 2018, nine states (Alaska, California, Colorado, Massachusetts, Maine, Nevada, Oregon, Washington and, most recently, Vermont) and the District of Columbia have legalized recreational marijuana in one form or another. Medical marijuana is now legal in 29 states. According to a recent article in Forbes, North American sales of marijuana are projected to top $20.2 billion by 2021.

Feds Reinstate Enforcement Policies

Notwithstanding marijuana’s growing support at the state level, the federal government recently increased the tension between it and states that allow some form of marijuana consumption. On January 4, 2018, Attorney General Jeff Sessions rescinded a policy under the Obama administration that had instructed federal prosecutors to take a relaxed approach in states where marijuana is legal. Sessions issued a memo to all U.S. Attorneys directing them to enforce the Controlled Substances Act, which “reflects Congress’ determination that marijuana is a dangerous drug and that marijuana activity is a serious crime,” and to follow “well-established principles” established in 1980 when pursuing prosecutions related to marijuana. According to a press release issued by the Department of Justice, the idea was to “provide [U.S. Attorneys] all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.” The memo issued not long after California legalized commercial marijuana sales.

Recent Rhode Island Decision Further Muddles Workplace Guidelines

Further compounding inconsistencies between state and federal government enforcement was a mid-2017 ruling by a Rhode Island state court holding an employer liable for refusing to hire a medical marijuana cardholder because she could not pass a pre-employment drug test. The court held the employer acted unlawfully even though the applicant admitted she would test positive on the company’s mandatory drug test. In most states, courts have held that medical marijuana does not excuse a failed drug screen, but in this case, the court found the refusal to hire based solely on the inability to pass the drug screen was unlawful.

Next Steps for Employers

What are employers to do in this inconsistent and ever-changing landscape? First, understand the applicable medical marijuana laws in each jurisdiction in which they have employees, which may differ significantly between states (and which may continue to evolve at the federal level). Generally, employers are able to implement drug-free workplace policies and drug testing policies that prohibit the use of marijuana by employees, even when operating in states that allow marijuana use. Further, employers generally are able to create marijuana restrictions for employees in safety-sensitive jobs, such as drivers. And even in states where medical marijuana use is permissible, no state currently requires an employer to allow marijuana use in the workplace. However, some states prohibit discrimination against medical or recreational marijuana users in hiring, termination and other aspects of employment. Thus, as noted in the recent Rhode Island case, employers need to be mindful to craft anti-discrimination policies in these jurisdictions and to address employment decisions as they relate to marijuana use carefully.

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