United States: The Hazy Impact Of Marijuana Legalization On The Workplace

Last Updated: November 11 2015
Article by Angela Courtwright

The use of marijuana for any purpose is illegal under Federal law.  However, approximately half of the states have enacted laws that legalize the use of marijuana for medical purposes.  Marijuana may also be used for recreational purposes in four states.  Voters in Ohio voted yesterday against legalizing recreational and medical marijuana but the issue is expected to be renewed in another form within the next few years.  Several other states are also expected to have similar initiatives on their ballots in 2016. 

How does this legalization affect employees in the workplace?  As seen below, this isn't an easy question to answer and it is essential that employers consult with legal professionals to determine the most appropriate way to navigate through the haze in order to maintain a safe workplace. 

Drug-Free Workplace

Many employers have policies in place prohibiting the use of alcohol and illegal drugs at work.  In fact, federal contractors are required to maintain a drug-free workplace.  What impact does this new legislation have, if any, on drug-free workplace policies?  Can employers continue to prohibit the possession and use of marijuana at work? 

The answer to this question is easy if the employer is federally funded or has federal contracts of at least $100,000: The employer must abide by the Drug-Free Workplace Act of 1988.  Any use of a controlled substance at work, including marijuana, must be prohibited. 

For employers who are not federal contractors, all courts that have decided this issue to date have found that a state's decision to permit the use of medical marijuana does not regulate private employment actions.  Thus, employers are permitted to discipline employees who violate the drug-free workplace policy.  Does this change if an employee requests that an accommodation be made for the use of medical marijuana to treat a disability?  See the following section for guidance.

Can a drug-free workplace policy continue to prohibit the employee's use of marijuana outside the workplace?  To answer this question, employers must first look to whether the applicable state has a statute governing employees' off-duty conduct.  In total, 29 states and the District of Columbia have statutes that protect employees from adverse employment actions based on their off duty activities.  The level of protection varies by state, with a few states offering protection for employees engaged in any lawful activity.  Despite this, the highest courts in states that have considered this issue have upheld an employee's termination for the use of marijuana.  This does not mean, however, that all courts will follow suit.  Employers must ensure that their Drug-Free Workplace policies remain up-to-date in light of changing legislature and court rulings as to an employer's ability to restrict or completely prohibit an employee's use of marijuana both at and outside of the workplace.

The ADA and Disability Related Inquiries

The Americans with Disabilities Act ("ADA") limits an employer's ability to inquire into an employee's medical conditions.  The Equal Employment Opportunity Commission's guidelines further define the questions an employer may not ask, such as, whether an employee is taking any prescription drugs or mediation; whether any drugs or medications have been taken in the past; or monitoring an employee taking drugs or medication.  However, an employer may ask employees if they are currently taking any illegal drugs.  What happens when an employee is using a drug that is considered illegal under federal law but is legal under state law? 

Under the ADA, an "'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs."  The "illegal use of drugs" is defined as the use of drugs that are unlawful under the Federal Controlled Substances Act.  Since marijuana is illegal under the Federal Controlled Substances Act, doesn't its use exclude a person from the definition of an "individual with a disability?"

The ADA's definition of "illegal use of drugs" contains an exception for the "use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law."  The Ninth Circuit Court of Appeals has held that the exception requires the drug use to be both "under supervision" and "be authorized by ... federal law."  An alternative argument may be made, however, that the use of the word "or" creates two exceptions and that the use of marijuana under a physician's supervision satisfies one of the exceptions.  The Ninth Circuit rejected this argument but it is unknown whether other courts will agree.  In states where the issue has not yet been decided, it is important that employers consult with legal counsel for guidance on how to respond to an employee's use of prescribed marijuana. 

What Employers Must Do in States Where the Use of Marijuana is Legal. 

  • Employers must review the marijuana legislation carefully to see if there are any built-in protections for employers.
  • Employers should think about employee off-duty conduct and the applicable state statute regarding the employee's rights.  After that, an employer should formulate its policy accordingly to address the consumption of marijuana outside of work.
  • If the employer is federally funded or has federal contracts, the employer must still abide by the Drug-Free Workplace Act of 1988.
  • Employers should stay updated on all relevant cases that are decided on workplace and marijuana issues. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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