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Conflict between federal and state attitudes adds to employer uncertainty about workplace drug policies
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U.S. Attorney General Jeff Sessions has rescinded an Obama-era policy not to interfere with state-approved medical and recreational marijuana use—creating more confusion for employers that want to develop drug and alcohol policies that comply with both federal and state requirements.
Here are SHRM Online resources and news articles from other trusted media outlets.
Although many states have decriminalized or legalized marijuana, its use remains illegal at the federal level. Through the so-called Cole memo in 2013, President Barack Obama's administration gave federal prosecutors permission to focus their resources on preventing marijuana sales to minors and targeting cartels instead of prosecuting adult use in accordance with state law. On Jan. 4, Sessions rescinded the memo, calling the shift a "return to the rule of law." However, a former U.S. Department of Justice official said it isn't clear how the department's new position will play out at the state level.
The federal announcement came the same week as recreational retail sales started in California. Already, employers were uncertain about how the state's new law would affect the workplace, and the conflict between federal and state attitudes adds to the confusion. But industry experts say that employers have always been allowed to discipline employees who are high on the job. In California, the law is "crystal clear," said Chief Operating Officer Sean Luse of Berkeley Patient Group, a marijuana dispensary. "Employers still retain the right to drug test and have a drug-free workplace."
[SHRM members-only HR Q&A: How does California law regarding medical marijuana use affect hiring and other workplace practices?]
Medical vs. Recreational
Lawmakers in Arkansas—where medical marijuana use was recently legalized—are wondering how Sessions' policy will affect the state's new industry. Gov. Asa Hutchinson thinks there should be a "difference in view" between medical and recreational use. For employers, though, it may be a "let's watch and see what happens" situation, an employment attorney told Arkansas Business. It's possible that states that permit recreational use may face more federal scrutiny than those that only allow medical use, the attorney noted.
Although the federal government is taking a stricter enforcement stance, recent judicial decisions show that some courts are taking a more employee-friendly approach to medicinal use. For example, in July 2017, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim, because employees have the right to seek a reasonable accommodation under Massachusetts law. Court rulings like this might represent the trend moving forward—meaning that employers should consider accommodations before taking adverse action against off-duty medical marijuana users.
Colorado Lawmakers React
Colorado voters approved medical marijuana use in 2002 and recreational use in 2012. State politicians on both sides of the political aisle have said that Sessions' decision interferes with the will of voters and states' rights. Colorado Attorney General Cynthia Coffman "encourage[d] people not to freak out." And the state's interim U.S. Attorney Bob Troyer said he expects that federal prosecutors will remain focused on "black and gray markets" and not on state-approved medical and recreational use.
(The Denver Post)
Related SHRM Articles:
Rethinking Zero Tolerance on Drugs in the Workplace, SHRM Online Talent Acquisition, December 2017
Do Employers Need to Accommodate Medical Marijuana Users? SHRM Online State & Local Updates, July 2017
Accommodating Workers with a History of Substance Abuse, SHRM Online State & Local Updates, July 2017
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