Adult use of marijuana for recreational purposes is legal in 21 states, according to the National Conference of State Legislatures. As of last October, 37 states and the District of Columbia permit marijuana for medical use, as do Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands, according to the National Organization for the Reform of Marijuana Laws.
What does that mean for employees who use cannabis for medical or recreational reasons? It depends on your state, your profession and even then, things are not always black and white.
State Laws Vary
Let’s say company policy calls for termination or suspension due to arrest and/or conviction. For example, in Kentucky, you might lose your job. Kentucky has legalized only medicinal CBD (cannabidiol) oil—not cannabis.
Despite this, Governor Andrew Beshear announced an executive order granting preemptive pardons for possession of marijuana for patients suffering from certain medical conditions.
However, even if someone obtained medical marijuana because of one of those medical conditions, that doesn’t mean you can’t be arrested. The deputy chief of police in Louisville responded that the governor’s order did not prohibit enforcement of Kentucky’s marijuana possession statute.
While you can obtain a pardon after conviction if you meet certain purchase requirements, it does not prevent the arrest or initial conviction. Marijuana remains illegal in Kentucky, with possession of up to eight ounces a misdemeanor offense punishable by up to 45 days in jail.
Even if enforcement of a cannabis offense is low on an officer’s radar, nothing in the governor’s order precludes an officer from using the discovery of marijuana during an investigation as probable cause for a search.
That means if a person had a legal firearm alongside a small amount of marijuana, they can automatically be charged with a felony possession. This could lead to an employer terminating an employee’s job.
Other states have similar views. In Georgia, only low-potency medicinal cannabis oil use is permitted. However, companies are permitted, by statute, to prohibit their employees’ off-duty use of such cannabis oils.
Georgia’s tetrahydrocannabinol, or THC, oil regulation states, “Nothing in this article shall require an employer to permit or accommodate the use, consumption, [or] possession … of marijuana in any form, or to affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty, and off-duty, use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in such employee’s system while at work.”
Consider Profession Type
Employees should also keep in mind what profession they work in when deciding whether they wish to use cannabis recreationally or medicinally. For example, law enforcement, medical professionals, and construction workers work in professions that bar the use of cannabis, regardless of medical need or adult use status within a state.
Truck drivers are another group that must be hyperaware of what products they ingest. The Department of Transportation’s Drug and Alcohol Testing Regulation does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.
The DOT regulation specifies, “You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (i.e. under a state law that purports to authorize such a recommendation, such as the ‘medical marijuana’ laws that some states have adopted.)”
Therefore, medical review officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.”
This means that all drivers with CDL licenses must be aware that any positive test for THC will result in their suspension and/or termination. This means that using CBD oil that may have trace amounts of THC in it could result in a driver’s suspension and/or termination.
Ultimately, despite moving towards full legalization, employees must be aware of their individual state laws regarding adult recreational use and even medicinal use of cannabis.
They should know their employers’ policies regarding use of cannabis and when they can potentially be tested, such as when showing impairment signs at work, and what recourse they have if they’re terminated.
Finally, they must be aware of any federal regulations that might impact their employment, such as whether their employer is engaged in federal contract work. If an employee has questions, they should check their state laws and speak with an attorney about the potential repercussions they might face.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Adam R. Dolan is a litigation partner at Gfeller Laurie. He manages catastrophic transportation, general liability and products liability matters, as well as federal civil rights claims, dram shop actions and subrogation.