Medical marijuana laws at the state level create a bit of a conundrum for employers. How can an employer enforce a drug and alcohol policy when there is a drug on the market that is legally prescribed for medicinal use in their state but still illegal for any use at the federal level? Can employers discipline employees for using a legal substance they have been prescribed?
“There are not a lot of clear and definitive answers in this area of the law, and it is rapidly changing.” Dinita James warned in a recent CER webinar. It’s clear from recent legislative action that the topic of medical marijuana usage isn’t going away. Which states allow medical marijuana use? How does that interfere with federal regulations?
History of Medical Marijuana Use
When the Federal Controlled Substances Act was enacted in 1970, it classified marijuana as a “Schedule I” drug (the same classification as heroin), and stated it has no legitimate medical use and is unlawful for all purposes. This is the current classification at the federal level. Interestingly, even though the Act requires a scientific analysis to create such classifications, marijuana was declared as such even without an analysis. This brought scientific research on the drug to a halt.
Today we find ourselves in a trend toward legalization as individual states move forward. Polls indicate that, for the first time since the poll was asked in the 1990s, half of Americans support legalizing marijuana for everyone. That support is even higher, at around 70 percent, for the legalizing of medical marijuana use.
California was the first state (in 1996) to adopt a Compassionate Use Act, permitting the use of marijuana for medical purposes. Now there are 18 states and the District of Columbia that have laws authorizing medical marijuana. Massachusetts is the latest. It adopted medical marijuana in the November 2012 election by voter initiative. Many states have decriminalized possession of small amounts of marijuana. (Decriminalization stops short of legalizing it completely; it simply means that those found in possession of small amounts will not be jailed).
In terms of legalization, Colorado and Washington voted in the November 2012 election to legalize possession of small quantities of marijuana for personal use—recreational use, not necessarily medical use. This move is the latest in the trend at the state level.
Medical Marijuana Use and Employment Implications
“Most of the states that have authorized the medical use of marijuana do not have any employment protections for medical marijuana users.” James told us. These types of protections didn’t even show up in the early legislation. The lack of clarity on the issue results in situations where employers can take adverse actions against employees found to be using marijuana—even if they’re using it in a way that is legal at the state level—because it is still illegal under federal law.
More recently, some states have started to adopt some protections against employment discrimination. Right now four states have adopted some protections: Arizona, Connecticut, Delaware, and Rhode Island. The laws have varying degrees of implementation, but the general aim is to prevent adverse employment action from being taken against individuals because of their status as someone who is able to use medical marijuana.
While there is no clear path for employers in terms of liability for adverse actions, it is still risky to ignore state law (even when acting in compliance with federal law). Stay informed of the trends at both the state and national level, and be ready to update policies quickly as the legal landscape changes.
For more information on medical marijuana laws and how these affect employers, order the webinar recording of “Medical Marijuana at Work: Your Obligations and Limitations When Employees Have the Right to Inhale.” To register for a future webinar, visit CER webinars.
Attorney Dinita L. James, a partner with FordHarrison, LLP, has extensive experience litigating complex matters in state and federal court, including large employment discrimination class actions and wage and hour collective actions. She also represents employers in defense of individual cases arising under anti-discrimination, whistleblower protection, and anti-retaliation laws and in enforcement of non-competition and other restrictive covenants.