The laws around medical marijuana are changing, almost on a weekly basis. It’s interesting to see the trajectory that the law has taken on the state and federal level in the last five years. And it appears that as a country, we may be on the precipice of big federal change.
The number of questions we get about marijuana has dramatically increased in the last few years, especially after the pandemic. As people deal with mental health issues, many are turning to medical marijuana, and it’s becoming more and more legalized.
First, however, it’s important to address a few myths about medical marijuana.
1. Medical marijuana is legal nationwide. False. Medical marijuana is still a Schedule I drug. This means the drug is still illegal federally. On the state level, we have a patchwork of laws in place that vary from state to state.
2. An employer must accommodate the use of medical marijuana in a state where it is legal. Not necessarily. Because of the way our federal system works, there are states enacting their own laws that have various degrees of protection for the use of medical marijuana. But just because it’s legal in a certain state does not mean it’s legal for someone to use it in the workplace.
3. There is no protection for use of marijuana in the workplace because it is illegal federally. It’s not that simple. On the other side of the coin, some states do protect the use of medical marijuana in the workplace. For a while the law was black and white, but since states started enacting protections, coverage and protections have become a matrix that needs to be navigated state to state, often with the assistance of legal counsel.
4. An employer can take adverse action based on a positive drug test for marijuana without consequence. It depends. It is a myth that drug tests for marijuana are accurate indicators of intoxication. And state laws surrounding positive drug tests are in flux.
The Current State of Marijuana Regulation
As employers and HR professionals, it’s important to think about where your company aligns on this issue, especially given shifting public sentiments and policies.
As of the 2022 Mid-Term Elections, 21 states and D.C. have passed recreational marijuana laws. Thirty-seven states and D.C. have comprehensive medical marijuana laws.
Additionally, a 2021 Pew Research survey found that except for individuals age 75 and older, the majority of all age groups favor marijuana legalization for medical and recreational use. Only 8% of U.S. adults say marijuana should not be legal at all.
This is important because much of your workforce likely falls under an age group that shares this sentiment. Employers need to be aware of the opinions of their workforce, especially given the current labor crunch.
Last year, we started to see bipartisan federal effort to address reform in the medical marijuana space. At a November 2022 hearing by the House Oversight Subcommittee on Civil Rights and Civil Liberties, one of the key themes was reforming the federal treatment of marijuana akin to how alcohol is regulated on a federal level. Later that month, the Senate unanimously passed a bill to expand medical marijuana research. This would give research institutions authority and permission that they’ve lacked in the past to research and have scientifically backed data on medical usage.
We anticipate that sometime this year, the country will see a major federal shift in the ways marijuana is regulated.
Navigating Marijuana Laws in the Workplace
Still, as an employer, navigating medical marijuana use today can be challenging. Of course, it is still prohibited under federal law. But adverse action could be considered workplace discrimination given the evolving state laws surrounding marijuana and medical marijuana use. It’s a fine line, and policies change from state to state.
Five years ago, an employer could likely have terminated an employee under their drug-free policy for testing positive for marijuana. Today, they need to proceed with more caution. Employers should ask themselves if they are terminating an employee because of the positive drug test or because they are using medical marijuana to treat their chronic anxiety and depression, which are covered disabilities. Underlying disabilities are protected by the ADA.
Employers may be able to take adverse action if their position is governed by the Department of Transportation. DOT’s Medical Marijuana Notice makes it clear that marijuana in all forms remains illegal.
Another clear prohibition is that most states do not permit being impaired and under the influence at the workplace. This includes states that have marijuana protections. Individuals may be able to take medical marijuana off duty and off-site, but that does not mean they can show up to work intoxicated.
Still, there are other gray areas. For instance, states still do not provide guidance on the amount of marijuana consumed to be considered intoxicated. And there are state laws that address the unreliability of drug tests. These states explicitly say a positive drug test for marijuana is not an indication of intoxication. Employers have to look at objectively measured symptoms, like slurred speech, dizziness, erratic behavior or lack of balance to determine intoxication.
For these reasons and others, now is an important time to reconsider your company’s drug testing and drug-free policies. When looking at your policies, consider these questions:
- Is this position a federally regulated role?
- Is the position safety sensitive?
- Does the employer receive federal funding, and is it subject to the Drug Free Workplace Policy?
- Does the employer need to do pre-employment testing for marijuana, or can the employer limit it to reasonable suspicion or post-accident?
Today’s drug testing policies need to be flexible, especially considering marijuana, as the laws continue to evolve.
Source: Phelps Dunbar LLP – Rebecca Sha and David D. “Beau” Haynes