While adapting to the changes in the legal landscape of cannabis may be daunting, organizations must ... [+]
As marijuana legalization sweeps across the United States, employers face a complex legal landscape regarding its use among employees. What was once a clear-cut issue of termination for positive drug tests has evolved into a complex assessment, with federal, state, and local laws offering conflicting guidance on how to navigate marijuana use in the workplace.
At the federal level, marijuana remains illegal under the Controlled Substances Act, classified as a Schedule I controlled substance. Despite provisions in the Americans with Disabilities Act (ADA) requiring reasonable accommodations for qualified workers with disabilities, the use and possession of marijuana for any purpose remains a federal offense, irrespective of state law. Consequently, under the ADA, employers are not obligated to accommodate marijuana use, even for medically approved reasons.
However, at the state level, the landscape is less straightforward. Presently, 39 states plus the District of Columbia have legalized marijuana for medical purposes, and 23 states plus the District of Columbia have also legalized recreational use. This dichotomy between federal and state laws leaves employers grappling with how to handle instances of marijuana use detected through drug screenings. The question remains: can an individual still be terminated for marijuana use?
As laws evolve and jurisdictions enact more robust protections for marijuana users, the answer becomes more nuanced. Nevertheless, organizations must adapt their approach to employees' lawful marijuana use, ensuring compliance with emerging laws by revising policies and procedures.
State laws vary significantly regarding the accommodation of marijuana use. While no law mandates that employers accept marijuana use or impairment in the workplace in Arkansas, Arizona, California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Virginia, Washington, and Washington, DC, laws specifically mandate that employers refrain from discriminating against individuals who are medical marijuana users.
In contrast, in several states, such as Alabama, Alaska, Colorado, Florida, Georgia, Kentucky, Michigan, Mississippi, Ohio, Oregon, South Dakota, and West Virginia, employers are not typically obligated to provide reasonable accommodation for medical marijuana use. These states maintain laws that do not necessitate employers to make special provisions for employees using medical marijuana.
In certain states such as Hawaii, Utah, Louisiana, North Dakota, and Vermont, the law remains silent regarding the accommodation of medical marijuana use by employees. Notably, Philadelphia has taken a further step to protect medical marijuana users by banning pre-employment marijuana testing within its jurisdiction.
The legalization of recreational or adult-use marijuana in numerous states introduces further complexities for employers. While some states, like Alaska, Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Missouri, New Mexico, Nevada, Ohio, Oregon, Vermont, and Virginia, have minimal impact on employers, others, such as Montana, New Jersey, Rhode Island, and Washington DC, permit pre-employment testing for cannabis but restrict its influence on employment decisions. Additionally, California and Washington prohibit pre-employment testing for non-psychoactive THC metabolites, necessitating adjustments to drug testing protocols.
Pending legislation provides a glimpse into potential further complications for the landscape. States like New Hampshire and Pennsylvania are considering bills that would legalize marijuana for adult use, with varying degrees of employment protections. Similarly, West Virginia has introduced a legalization bill lacking explicit employment provisions, while North Carolina and South Carolina focus on medical cannabis legislation without employment safeguards.
In Nebraska, proposed bills aim to empower voters to determine the fate of marijuana within the state, introducing the possibility of significant legislative changes pending public opinion. Similarly, lawmakers in Tennessee have rekindled discussions by submitting a bill that seeks to include marijuana legalization referendum questions on the 2024 ballot. However, the outcome of such a vote would not be legally binding. Meanwhile, in Georgia, a bill proposes a constitutional amendment to legalize the use, possession, and retail sale of marijuana for adults aged 21 and over. Should this measure garner approval from lawmakers, it would be presented to Georgia voters for consideration.
Employers must update policies in this shifting legal environment to reflect evolving regulations. Maintaining zero-tolerance drug policies may prove impractical, necessitating a focus on cannabis use and impairment in the workplace. Employers must also differentiate between medical and recreational marijuana use, adjusting policies accordingly. Additionally, revisions to drug testing panels are essential to align with state requirements and accommodate lawful marijuana use.
While adapting to the changes in the legal landscape of cannabis may be daunting, organizations must act promptly to address their business needs and ensure compliance with evolving marijuana laws. As legalization efforts gain momentum nationwide, proactive measures are essential for employers to remain compliant and mitigate legal risks.
