Workplace Impacts of Recreational Marijuana Laws
By Kathryn J. Russo, Jackson Lewis P.C.
Illustration by Melissa Stankovich
Recreational marijuana laws pose a number of challenges for employers, mainly because they lead the general public to believe that marijuana may be used at any time for any reason without jeopardizing an individual’s employment. Fortunately for employers, this assumption is untrue, but it highlights the need for employers to make their expectations clear in a written policy that is communicated to all employees.
Marijuana still is illegal under federal law. For employers who are required to comply with federal law (such as DOT-regulated employers and federal contractors), marijuana use still is unacceptable, regardless of state laws to the contrary. Additionally, employers of employees who occupy dangerous, safety-sensitive positions may choose to follow federal law and disregard state laws that permit the use of recreational marijuana, because the safety risks are too great.
Currently, there are eight states (and the District of Columbia) that have recreational marijuana laws: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington. None of these laws contains employment discrimination provisions, or requires employers to accommodate the use of recreational marijuana at work (with the exception of Maine, discussed below). Indeed, many of these laws expressly permit employers to publish policies prohibiting the use of marijuana at work and to continue drug testing. Drug tests pose unique challenges, however, due to the fact that drugs stay in the human body longer than alcohol, and therefore, an individual could test positive on a workplace drug test even though he or she used recreational marijuana while off-duty and off company premises. This is the dilemma for employers, because there is no drug test that will identify the time and place that an individual used marijuana.
The best practice for employers who conduct drug testing for marijuana is to state clearly in a written testing policy that illegal drugs include marijuana and that positive drug test results caused by recreational use will lead to disciplinary action. Include language that notifies employees that off-duty recreational use of marijuana may cause a positive drug test result, and state what the company’s policy is with regard to such results. Such disciplinary consequences must, of course, comply with applicable laws, including those state laws that prohibit termination of an employee for a first-time positive test result.
Here are the pertinent provisions of the nine recreational marijuana laws that impact employers:
Alaska: Alaska’s recreational marijuana law provides that it is not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.
California: California’s Proposition 64, the Adult Use of Marijuana Act, passed in November 2016. The Bureau of Marijuana Control has until January 1, 2018 to begin issuing dispensary licenses, so at present, recreational marijuana cannot be purchased in California. The law states that it does not alter or amend the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace and to have policies prohibiting the use of marijuana by employees and applicants. The law further does not require employers to permit or accommodate the use of marijuana in the workplace, or prevent employers from complying with state or federal law.
Colorado: Colorado legalized recreational marijuana in 2012. The law expressly states that “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” In addition, employers are permitted to prohibit the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in their premises.
District of Columbia: D.C.’s recreational marijuana law provides that it is not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.
Maine: Maine’s Marijuana Legalization Act passed in November 2016, but the effective date of most provisions of the law has been delayed until February 1, 2018, so that the state licensing authority can establish and implement regulations concerning retail sales of marijuana. The law states that it does not require employers to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace. In addition, the law will not impact an employer’s ability to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. Despite that language, however, the law prohibits employers from “refusing to employ a person solely because that person consumed marijuana outside the employer’s property.” This language is problematic for employers who conduct drug testing because a drug test does not reveal when or where someone used marijuana. It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property” because marijuana can stay in the human body for days or even weeks. This language will make it difficult for Maine employers to conduct drug testing for marijuana, particularly in the pre-employment context. Even if a Maine employer suspects that an employee is “under the influence of marijuana in the workplace,” the drug test result will not provide conclusive proof that the marijuana was consumed at work. The Maine legislature has formed a committee to consider implementation of the recreational marijuana law, and it is hoped that the anti-discrimination language will be revised.
Massachusetts: Massachusetts’ The Regulation and Taxation of Marijuana Act passed in November 2016 and took effect on December 15, 2016. The Cannabis Control Commission is required to implement regulations no later than January 1, 2018. The law does not require an employer to permit or accommodate conduct allowed by the law and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees. The law also does not amend existing penalties for the operation of a vehicle or machinery while impaired by marijuana or marijuana products, or for performing a task while impaired by marijuana that would constitute negligence or professional malpractice.
Nevada: Nevada’s Regulation and Taxation of Marijuana Act took effect on January 1, 2017, and Nevada will begin receiving applications for marijuana establishments no later than January 1, 2018. The law does not prohibit a public or private employer from maintaining, enacting, and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under the law.
Oregon: Oregon’s recreational marijuana law provides that it may not be construed to amend or affect in any way any state or federal law pertaining to employment matters.
Washington: Washington legalized recreational marijuana in 2012. The law is silent with regard to employment issues.
Kathryn J. Russo is a principal in the Long Island Office of Jackson Lewis P.C. She is the team leader of the firm’s Drug Testing and Substance Abuse Management Practice Team within the Disability Leave and Health Management Practice Group, and is considered a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state, and local laws.