The U.S. Department of Justice (DOJ) announcement updating the federal marijuana enforcement policy means the federal government won’t sue to keep states from allowing controlled recreational use of marijuana, but the effect on employers isn’t yet clear.
The DOJ announced on August 29 that it was revising its policy because of state legislation in Colorado and Washington legalizing the possession of small amounts of marijuana. The announcement emphasized, however, that marijuana use remains unlawful under the federal Controlled Substances Act, and federal prosecutors will continue to enforce that law.
A DOJ memo identifies eight areas federal prosecutors will continue to prioritize.
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
The DOJ says it will rely on state and local authorities to enforce their own laws allowing marijuana use.
“For states such as Colorado and Washington that have enacted laws to authorize the production, distribution, and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance,” the DOJ announcement says. “These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding.”
The announcement goes on to say that if state actions are deemed inadequate, “federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities.” Also, the DOJ reserves the right to challenge a state’s regulatory scheme.
In a November 2012 ballot initiative, Colorado voters passed Amendment 64, allowing individuals 21 and older to possess, use, display, and transport an ounce or less of marijuana as long as users don’t consume it “openly or publicly or in a manner that endangers others.”
The law offers employers the same protections that the state’s medical marijuana law offers. Employers aren’t required “to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace.” It also doesn’t “affect the ability of employers to have policies restricting the use of marijuana by employees,” but as an article in the December 2012 issue of Colorado Employment Law Letter pointed out, the effect of the law’s language allowing employers to control marijuana use by employees remains for the courts to clarify.
Washington’s law also was passed in a November 2012 ballot initiative. Initiative 502 made it legal for adults at least 21 to possess and consume limited amounts of marijuana. An article in the December 2012 issue of Washington Employment Law Letter stated that employers were “still free to maintain a broad prohibition on marijuana, including marijuana consumption outside the workplace or for medical purposes—subject, of course, to your other policies and practices.”