Voters in several states approved the legalization of marijuana, bringing the count of states with legal marijuana to 36 for medical purposes and 15 for recreational. Below is memo from FCA legal counsel on considerations for employers under marijuana laws.

As the dust settles from the 2020 election, voters in five states passed initiatives to legalize marijuana usage. While marijuana is still classified as an illegal drug under federal law, it is legal for medicinal purposes in 36 states and completely legal in 15. The conflict between state and federal law can be confusing for employers. Nevertheless, as outlined below, no laws prohibit an employer from discharging an employee who is under the influence of marijuana or using marijuana while at work. These laws may, however, have some impact on employers who have implemented “zero tolerance” drug testing or policies that discipline or discharge employees who test positive for marijuana. Employers with these policies should have them reviewed by counsel to ensure that they are compliant with state and federal law.

Considerations for Employers
First, these new laws, like the other state laws legalizing medical or recreational marijuana, do not require employers to tolerate marijuana use at the workplace or employees who work under the influence of marijuana. Second, zero tolerance drug policies can be maintained if employers are
mandated to perform drug testing by federal statutes or regulations or employees are employed in safety-sensitive positions. However, employers with zero tolerance drug testing policies need to exercise caution, because some states that have legalized marijuana prohibit employers from discharging employees for testing positive if, for example, the employee has a valid medical prescription and is not presently under the influence.
Likewise, some state accommodation laws require employers to accommodate employees who test positive for medical marijuana and are not under the influence of marijuana while working.

Newly Passed Marijuana Laws

Arizona – voters passed Proposition 207 which legalizes the sale and possession of marijuana for adult, recreational use. Recreational marijuana sales can begin in early 2021 once the Arizona Department of Health Services issues business licenses. Proposition 207 explicitly provides that the law “does not restrict the rights of employers to maintain a drug-and-alcohol-free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees.” It also makes clear that an employer does not need to “allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment.”

Mississippi – Voters passed “Initiative 65,” which 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 deadline for the program to be operational is August 15, 2021. Initiative 65 does not contain any express protections for applicants for employment or employees, nor does it prohibit testing for marijuana. Such protections typically prohibit discrimination against medical marijuana cardholders based on their cardholder status. While Mississippi’s new medical marijuana law does not contain any such protections, employers may want to be careful when handling medical marijuana issues to ensure that they are not running afoul of disability discrimination laws.

Montana – Voters passed two complimentary ballot initiatives: (1) Initiative 118, which amends the Montana Constitution to establish the legal age for the purchase, use and consumption of marijuana as 21 years old, and (2) Initiative 190, which legalizes the recreational use and possession of marijuana for adults over the age of 21. Neither law provides express protections for job applicants or employees or prohibits testing for marijuana. Initiative 190, for example, provides that nothing in the law shall be construed to “require an employer to permit or accommodate [marijuana use] in any workplace or on the employer’s property” or “prevent an employer from declining to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual…because of the individual’s violation of a workplace drug policy or intoxication by marijuana while working.”

New Jersey – Voters approved a ballot measure legalizing the use of recreational marijuana for adults over the age of 21. The New Jersey Cannabis Regulatory Commission will enact regulations to implement the measure. No specific information was provided on protections afforded to employees, although existing protections for medical marijuana users under state law may be implicated by the new law.

South Dakota – Voters passed two ballot measures: (1) “Constitutional Amendment A,” which legalizes recreational use of marijuana for adults 21 years of age and older and requires the state legislature to pass laws providing for the medical use of marijuana and (2) “Measure 26,” which establishes a medical marijuana program for patients with serious health conditions. Amendment A does not affect an employer’s ability to restrict the use of marijuana in the workplace or to prohibit employees from working under the influence. It also does not require employers to accommodate marijuana usage at the workplace. Measure 26 permits employers to prohibit employees from working while under the influence of
marijuana and ingesting marijuana at the workplace. It also requires that employers treat employees who use medical marijuana the same as patients prescribed prescription drugs with regard to employment and drug testing, except to the extent the employer’s actions would conflict with an employer’s obligations under federal law or regulations.

Bottom Line
As you can see, the legalization of medical and recreational marijuana under state law has resulted in conflicting and confusing legal standards surrounding drug testing. Employers should engage competent legal counsel to review their drug testing policies to ensure that they are in compliance with state and federal law