United States: Chronic Dispute: What The Sessions Marijuana Memo Means For Employers

Last Updated: January 9 2018
Article by Howard A. Mavity, Lisa McGlynn and Nicole E. Stenoish

Attorney General Jeff Sessions issued a one-page memorandum yesterday rescinding Obama-era guidance that had allowed states to legalize medical and recreational marijuana with marginal federal interference, eliminating any doubt about his position against the trend towards legalization. The bad news is that the current state of the law regarding the legality of marijuana use remains confusing, to say the least: it is dependent on the state you are in, and while the legislatures and courts across the country continue to revisit and shape the laws at issue, marijuana continues to be classified as an illegal Schedule I drug pursuant to the Federal Controlled Substances Act. 

The good news for employers: yesterday's memorandum doesn't seem to have impacted your approach to the issue from a workplace law perspective. Where state law had permitted you to take a zero tolerance approach to those testing positive for marijuana, you can continue on the same course. And if you took a more relaxed approach—whether due to state law or your own company philosophy—you can likely carry on with business as usual. But there could be turbulence ahead, so you will want to get up to speed on the latest and pay close attention to the upcoming developments on this topic.

How Did We Get Here?

Currently, 29 states allow some form of medical marijuana use, while eight states and the District of Columbia permit recreational use. These numbers continue to grow each year, as public support for loosening restrictions on the drug continues to grow. For example, when California became the first state to vote in favor of legalizing cannabis for medical purposes in 1996, it passed with only 55 percent of the vote; when Florida became one of the most recent states to legalize medical marijuana in 2016, it passed with 71 percent. 

However, while the states continue to pass laws changing the legal status of marijuana use, the federal government has not. Marijuana has remained a Schedule I drug since 1970 when the Controlled Substances Act was signed into law by President Nixon. Since 1972, there have been repeated attempts to remove it from this classification, but none have been successful. In other words, while someone may be able to use marijuana legally for recreational use in Colorado, or for medical use in Pennsylvania, those who do are technically subject to federal penalties for violating the Controlled Substances Act. 

This direct conflict has made many employers wary of condoning marijuana use, regardless of their state law. Under President Obama, Deputy Attorney General James Cole issued guidance in August 2013 to all federal law enforcement personnel indicating that the government would take a fairly relaxed approach when it came to the conflict between federal and state law. The "Cole Memo" essentially concluded that the federal government would not focus its attention on enforcing marijuana related cases, but would instead focus on preventing distribution to minors, preventing marijuana revenue from being used to fund criminal enterprises (such as gangs or cartels), and preventing marijuana from moving into states where it is not legal. Congress followed suit by prohibiting the Justice Department from spending funds to prosecute marijuana patients and providers who are acting lawfully under state laws. Thus, under the Cole Memo and subsequent Congressional action, the federal government essentially agreed not to go after marijuana users.

This hands-off attitude no doubt prompted many states to feel more comfortable passing laws that permitted the legal use of the drug. Moreover, under this relaxed atmosphere, an entire industry of cannabis purveyors sprung up, especially in the states that passed recreational marijuana laws.

But with the election of President Trump, many wondered whether this hands-off policy would change. Even though President Trump indicated a support of state laws governing and permitting medical marijuana during the election campaign, his choice for Attorney General has been repeatedly vocal about his own opposition to all marijuana use. For example, Attorney General Sessions previously referred to marijuana as a "real danger" and "not the kind of thing that should be legalized," and also stated that "good people don't smoke marijuana." It thus came as little surprise that in April 2017 Attorney General Sessions ordered his Justice Department to review the Cole Memo and make recommendations for possible changes. This lead to the issuance of the January 4, 2018 Sessions Memo. 

The Sessions Memo Means The Cole Memo Is Up In Smoke

The Sessions Memo was released just four days after California's recreational marijuana law took effect, restoring the ability of federal prosecutors to enforce federal marijuana laws and effectively rescinding the Cole Memo. The Sessions Memo now allows U.S. Attorneys to use "well-established prosecutorial principles" and "investigative and prosecutorial discretion" to decide whether or not to enforce federal marijuana law, regardless of state legalization laws.

The Sessions Memo does not directly call for a crackdown on the prosecution of marijuana laws or indicate that the Department of Justice intends to do so in the future, but it reaffirms the Controlled Substances Act and reminds top federal authorities that marijuana is a "dangerous drug" and "marijuana activity is a serious crime." Without more, the Sessions Memo simply rejects the special treatment of marijuana initially established by the Cole Memo, indicating a shift in the Department of Justice's marijuana policy—and adding increased uncertainty as to the ongoing tug-of-war between state legalization and federal criminalization.

Employers Do Not Appear To Be Affected By Sessions Memo

The Sessions Memo will not likely have much of an effect on current state marijuana programs. In states where marijuana is unlawful, the Sessions Memo has no impact. In states where marijuana is legal, it is too early to tell how federal prosecutors will react to the Sessions Memo, but federal authorities are not likely to suddenly prioritize federal marijuana enforcement. Several state attorneys general have already released statements indicating that they will continue with the status quo despite the Sessions Memo.

Because of this, the Sessions Memo should not change your overall approach regarding how to deal with marijuana in the workplace. The Memo does not alter employer marijuana policies already in place, and does not impact employment marijuana policies in states where marijuana is legal. So far, courts have generally not required employers to accommodate marijuana use, and although there are some significant exceptions (most notably a July 2017  victory for medical marijuana users in Massachusetts), yesterday's news does not alter that. And in those states that offer employment protections to medical marijuana users, yesterday's Memo does little to change things. Employers should not feel emboldened to take a stricter approach against applicants or employees in those states because of this potential shift in federal prosecutorial discretion.

Marijuana Law Compliance Best Practices

But because this is an area of the law that will continue to be tested in the courts, particularly in states with statutes protecting employees who engage in "lawful" off-duty conduct, you should consult with counsel when developing personnel policies and when deciding whether to take action regarding a specific incident. Moreover, there are some key things you can do to ensure compliance with state and federal marijuana laws.

  1. Understand Your State Marijuana Laws. It is important that you understand your rights and obligations—and those of your employees—under any state-specific marijuana laws in place where you do business. Each state has different requirements, and by keeping yourself up to date on the constantly changing laws, you can avoid surprises down the line.
  2. Implement A Drug-Free Workplace Policy. Although every state is different, courts generally allow you the right to require a drug-free workplace and enforce zero tolerance policies. You may generally take consistent adverse employment actions against employees for violations of your drug policy, even in states where recreational marijuana is legal, and even in situations when an employee uses marijuana outside of work but comes to work under the influence of the drug. Be careful, however, if your state law includes specific protections for medical marijuana users, or offers protections for lawful off-duty conduct.

You should carefully consider your unique needs when determining what type of drug free workplace policy is appropriate:

  • Mandatory drug testing. Some employers require drug testing as a condition of employment. Employers who do so need to ensure they follow the specific state law with regard to any disciplinary action taken based on positive tests. Some states forbid discipline for positive tests unless the employee was impaired at work. However, employers that require mandatory drug testing may have a difficult time recruiting and finding employees that comply with the drug-free requirements. If that is a concern, you may want to consider another option.
  • Policy against use, possession, and impairment. Employers that wish to forego mandatory drug testing should instead have strong policies in place that prohibit the use and possession of marijuana at the worksite and prohibit impairment during work hours. Employers who choose to use these types of policies instead of requiring mandatory drug testing may still be able to require an employee take a drug test after the occurrence of a workplace incident, or if there is reasonable suspicion that the employee is impaired at while at work. Again, the specific requirements vary by state.
  1. Consider Reasonable Accommodations. Generally, most courts have held that employers need not accommodate medical marijuana in the workplace. However, some courts have recently indicated that reasonable accommodations may be appropriate in certain situations, and employers in those states should at least engage their employees in the interactive process.
  2. Have Policies For Safety-Sensitive Positions. As explained in more detail on our firm's Workplace Safety and Health Law Blog, you will want to take special consideration in mind when it comes to those jobs with safety-sensitive components (or where federal law provides mandatory enforcement of certain policies).


There continues to be a chronic dispute between federal law and state law on the issue of marijuana, and yesterday's Sessions Memo amplified the conflict. The increasing number of states that allow medical or recreational marijuana use indicates a societal shift towards acceptance of marijuana, but the federal government continues to persist with the steadfast belief that marijuana is an illegal drug. This conflict does not appear to be on the verge of resolution anytime soon.

However, if you follow these simple guidelines as they relate to marijuana and the workplace, you should be in a good position when it comes to labor an employment law. Our advice at this point: stay up to date on state specific marijuana laws, develop state-appropriate policies for all applicants and employees, and apply your marijuana policies in a uniform fashion.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Howard A. Mavity
Lisa McGlynn
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions