Bloomberg Law
Nov. 25, 2020, 9:00 AM

As More States Legalize Marijuana, Employers Need These Guidelines

Timothy Hilton
Timothy Hilton
Husch Blackwell LLP
Jenna Brofsky
Jenna Brofsky
Husch Blackwell LLP

Voters in five states in the general election passed initiatives to legalize marijuana usage. As the success of these ballot initiatives suggests, a growing number of states are legalizing some form of marijuana use despite its classification as an illegal Schedule 1 drug under the federal Controlled Substance Act.

Employers need to adopt human resource policies and processes that establish drug policies appropriate for their workplaces while staying compliant with the changing state marijuana laws.

An Employer’s Dilemma

Employers, especially multi-state employers, face a complex patchwork of state laws legalizing marijuana and conflicting federal laws when developing and implementing workplace drug policies. Because marijuana is still considered illegal under federal law, marijuana usage is not protected by federal laws, including the Americans with Disabilities Act. Any duty to accommodate marijuana users or to permit off-duty marijuana usage varies by state law.

As a result, employers must be cognizant of whether state laws contain employment protections for employees who legally use marijuana. These employment protections can take the form of a requirement that employers accommodate marijuana use for medical reasons, or of a prohibition against discrimination based on off-duty marijuana use.

Do the New State Marijuana Legalization Measures Impose New Employer Obligations?

Yes. The provisions applying to employers are explained below. Employers should be cautious when drug testing employees for marijuana in states that have legalized medical use or off-duty use of marijuana.

Arizona: Voters passed Proposition 207, which legalizes the sale and possession of marijuana for adult, recreational use. Proposition 207 explicitly provides that employers can maintain drug-free workplace policies and can continue to restrict the use of marijuana by employees or by prospective employees and on their property.

Mississippi: Initiative 65 requires the establishment of a medical marijuana program that permits individuals with specified debilitating medical conditions to obtain medical marijuana upon the certification of a licensed physician. The initiative does not require employers to provide accommodations to employees who use medical marijuana or to permit the use of medical marijuana in the workplace.

Montana: Montana passed two complementary ballot initiatives: Initiative 118, which establishes the legal age for the purchase, use, and consumption of marijuana at 21, and Initiative 190 (I-190), which legalizes recreational use and possession subject to the age limit.

I-190 does not require employers to permit the use of marijuana in the workplace or on the employer’s property. It also does not require employers to accommodate employees who use marijuana or prohibit adverse actions for violations of employer drug policy.

New Jersey: New Jersey voters approved a ballot measure legalizing the use of recreational marijuana for adults over the age of 21. The Cannabis Regulatory Commission will enact regulations to implement the measure, and the implications for employers/employees remain unclear.

South Dakota: Amendment A legalizes recreational use of marijuana for people over 21 and requires the state legislature to pass laws providing for the medical use of marijuana. Measure 26 establishes a medical marijuana program for patients with serious health conditions.

Neither measure prohibits employers from accommodating marijuana use nor enforcing drug policies. Measure 26, however, requires that employers treat employees who use medical marijuana the same as patients prescribed prescription drugs with regard to employment and drug testing, subject to federal law.

What This Means for Employers

Employers should review the state laws in the jurisdictions in which they operate, understand their rights, and consider adopting the following practices:

  • No state law requires you to tolerate marijuana use at work or working under the influence of marijuana.
  • Your zero-tolerance drug policies can be maintained if you are mandated to perform drug testing by federal law (e.g. for safety-sensitive positions).
  • Caution should be exercised in enforcing zero-tolerance drug policies that include marijuana use, because metabolites may remain in the blood even if the employee is no longer under the influence of marijuana.
  • If state law does require such accommodations for marijuana users, you should take the following actions:
    • Engage in your usual interactive process to determine if and what type(s) of accommodations are needed; and
    • Determine if you can reasonably provide an accommodation to the employee (including whether it presents a direct threat to others).
  • In states where marijuana use is legal, understand whether there is any other state law that could be implicated when drug testing, including a prohibition on restricting lawful off-duty conduct by employees.
  • Review your drug testing policy.
    • In states where recreational or medical marijuana has been legalized, consider not testing for marijuana because the metabolites remain detectable for up to several days after the employee is under the influence.
    • Train supervisors and managers to detect suspicious behavior indicative of current marijuana intoxication and document/conduct reasonable suspicion tests based on that.
    • Discipline or take adverse employment action against employees who attempt to work while under the influence of marijuana or use marijuana while at the workplace in violation of the employer’s policies.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Timothy Hilton (partner) and Jenna Brofsky (senior associate) are Kansas City-based attorneys with Husch Blackwell LLP focused on advising clients on labor and employment law.

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