The results of an April 2015 Pew Research Center survey found that for the first time in more than four decades, a majority of Americans favor legalizing marijuana. Researchers noted that as recently as 2006, just 32% supported marijuana legalization. Today, 53% are in favor of legalization and 77% support the use of marijuana for medical purposes.
Recreational marijuana is currently legal in four states (Alaska, Colorado, Oregon and Washington) and the District of Columbia. In total, 27 states and the District of Columbia have either legalized medical marijuana or decriminalized marijuana possession – or both. These laws, however, either omit or specifically exclude protection against marijuana use during working hours, on public property, or if it would create a safety hazard.
The times – and the laws on marijuana use – are changing, leaving many employers, especially those with employees in multiple states, confused about the appropriate actions to take in circumstances where marijuana is involved.
Though policies remain hazy and more state ballots are on the way, employers should take note of the following:
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Marijuana possession and use remain illegal under the federal Controlled Substances Act. However, federal enforcement is curtailed in states that have sanctioned the use of medical marijuana.
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Despite the stringent requirements in some states, zero-tolerance drug policies in the workplace are allowed and enforceable. Most statutes include exemptions for employers and specifically authorize policies that prohibit marijuana use on-the-job or on the premises. If marijuana use remains illegal under federal law, employers are, for the most part, permitted to implement any drug-free workplace policy they choose.
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Similarly, most state statutes provide that employers are under no obligation to accommodate the medical use of marijuana in any workplace.
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In Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island, statues provide employee protections from discrimination mostly on the basis of being a medical marijuana cardholder or for testing positive for marijuana during a drug test. In some of these states (Arizona, Delaware and Minnesota), a positive test result alone will not provide the employer with sufficient grounds to discharge. The employer must have additional evidence that an employee was under the influence of marijuana while at work.
- Another concern with the lawful use of marijuana occurs in safety-sensitive positions or when employees hold jobs that require them to operate motor vehicles. Most of the relevant statutes do not authorize the operation of any motor vehicle while under the influence of marijuana. However, the Delaware and Rhode Island statutes specifically state that a registered, qualified patient is not considered to be operating a vehicle under the influence solely because of the presence of marijuana in his or her system.
Advice for employers
- Review your drug-free workplace policies to ensure compliance with the latest local and state laws. Employers in states that generally do not provide for employment protections should still review their policies for compliance as their state may have a "lawful activities" or "lawful products" statute.
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Also consider if or when you will conduct drug testing. Employers may expect more challenges from employees who have failed drug tests or who claim they were not impaired while working.
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Watch for the ruling by the Colorado Supreme Court in the Coats v. Dish Network case as it could result in nationwide changes regarding the legality of state marijuana-protection statutes. Among other issues, the Court is set to decide whether the Lawful Activities Statute protects employees from being fired for the lawful use of medical marijuana outside of work where the use does not impact job performance.
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Whenever questions relating to such a dynamic area of the law arise, it is always best to consult an employment law expert or an experienced HR consultant that can provide guidance based on the most current state and federal statutes.