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Eight states have legalized recreational marijuana use, and more may follow in 2018
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Since 2012, recreational marijuana laws have passed in eight states and Washington, D.C., but none of those laws allow residents to get high whenever and wherever they want, particularly not in the workplace.
Every state that has passed a recreational marijuana law strictly regulates use of the drug by, for example, banning its use in public, regulating where it can be purchased and limiting how much can be grown at home. Importantly, no state law forces employers to tolerate on-the-job use.
"Just as employers are ill-advised to permit alcohol use at the workplace, so too with recreational marijuana," said Jill Cohen, an attorney with Eckert Seamans Cherin & Mellott in Princeton, N.J.
Official retail sales for recreational use in California started on Jan. 1, but the rules are still in flux, said Rachel Schumacher, an attorney with Akerman in Los Angeles. She noted that different cities have different regulations. For example, cities in the state can opt to be "dry towns."
Employers, however, have to be prepared for the fact that it is now much easier to obtain marijuana—and in new forms, Schumacher added. "Instead of smoking a blunt, people are using oils, creams, brownies, perhaps even infused butter they bought at a dispensary. How are employers going to know if that's just a regular brownie?"
Employers have to start being more mindful of changes in performance and indicators of intoxication, she said.
Colorado and Washington were the first states to legalize recreational marijuana in 2012 for people 21 or older.
Though all marijuana use still remains illegal at the federal level, President Barack Obama's administration issued the so-called Cole memo in 2013, which shifted the U.S. Justice Department's (DOJ's) enforcement priorities away from prosecuting adult marijuana users who are complying with state law. Instead, the DOJ focused its efforts on preventing marijuana sales to minors and stopping drug cartels.
"This enforcement priority cleared the path for states to enact their own laws legalizing marijuana at a state level," Cohen said.
Since the Cole memo was issued, Alaska, California, Nevada, Maine, Massachusetts, Oregon and Washington, D.C., have passed recreational marijuana laws.
Many state laws have taken effect—but retail sales in some jurisdictions, such as Maine, have yet to be approved.
Election Day in 2018 could bring another wave of new weed laws. According to Ballotpedia—a nonpartisan voter resource—recreational marijuana ballot initiatives are in the works in at least six states: Arizona (where a similar initiative failed in 2016), Florida, Michigan, Missouri, Nebraska and North Dakota.
But a recent move by the federal government might make voters and state legislators uneasy about passing new marijuana laws that conflict with federal law. On Jan. 4, President Donald Trump's administration rescinded the Cole memo. U.S. Attorney General Jeff Sessions called this policy shift a "return to the rule of law."
Therefore, the future of state legalization of marijuana remains unclear, Cohen said. "As a practical matter, the federal enforcement authorities always retained the ability to enforce the federal drug laws; the revocation of the Cole memo simply makes it more likely that they will."
Some lawmakers on both sides of the political aisle, however, have opposed Sessions' decision, saying it interferes with the will of voters and states' rights, Time magazine reported.
Recreational marijuana should be treated like recreational alcohol, with the additional understanding that unlike alcohol, marijuana is still illegal under federal law, Cohen said. "Therefore, as a general premise, employers should consider maintaining drug-free workplace policies."
Employers should note that a few states—such as Massachusetts and New York— afford protections to registered medical marijuana users and may require that employers engage in an interactive process to see if a reasonable accommodation can be made in some circumstances.
"As a practical matter, this means that if an employee in one of these states is using marijuana with a medical card, employers cannot fire them on that basis. However, if an employee is using marijuana recreationally, the employee's job would not be similarly protected," Cohen said.
In the majority of states, including California, employers don't have to make accommodations even for off-duty medicinal use. The current case law in California makes that clear, but the law could evolve as attitudes change, Schumacher said.
The underlying issue is that a medical marijuana cardholder may have an independently qualifying medical condition. Therefore, employers may want to engage in an interactive process even if it's not required by law, she said.
[SHRM members-only HR Q&A: How does California law regarding medical marijuana use affect hiring and other workplace practices?]
Employers don't have to tolerate on-the-job intoxication even if a worker is using marijuana for medical reasons, so accommodations might include additional time off or a leave of absence for the period the worker needs to use the drug.
Workplace policies should clearly state that employees can't be drunk or high at work, Schumacher said.
Workers need to know that they can't have an edible at lunch and come back to the office, she added. "Employers have to address the way the world is now and not use the same old drug and alcohol policy."
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