House Passes Cannabis Law as Support for Legalization Grows

​A federal bill that would decriminalize cannabis use has been approved by the U.S. House of Representatives for the second time, but the bill's fate in the Senate is unclear. If signed into law, the act would resolve conflicts between federal and state law that cause confusion for employers—but state laws on medical and recreational marijuana use would still vary.

The Marijuana Opportunity Reinvestment and Expungement (MORE) Act, H.R. 3617, passed the House in a 220-204 vote on April 1 with all but two Democrats voting for the measure and all but three Republicans voting against it.

What will happen in the Senate? Senate Majority Leader Chuck Schumer (D-N.Y.) supports cannabis decriminalization and plans to release a separate Senate bill soon, according to The Washington Post. Schumer said in a statement that "the time has come for comprehensive reform of federal cannabis laws," but he acknowledged that Democrats "will need Republicans to pass a legalization bill in the Senate."

The Senate is split 50-50 between Democrats and Republicans, and Vice President Kamala Harris casts the tie-breaking vote when the Senate is divided. But the bill would need 60 Senate votes to break a filibuster.

States Would Still Regulate Cannabis

Marijuana is still listed as a Schedule I drug under the federal Controlled Substances Act, which means it is deemed to have a high potential for abuse and no medical value. The MORE Act would deschedule marijuana, remove criminal sanctions and provide some relief for past convictions.

What would the act mean for the workplace? States would still regulate cannabis and would not be required to legalize its use. Currently, 37 states have approved medical marijuana use, and 18 of those states and Washington, D.C., also have approved recreational use.

Employers should note, however, that state laws vary significantly as to whether they provide workplace protection for off-duty use. Lisa Reimbold, an attorney with Clark Hill in Los Angeles, noted that in California, where medical and recreational cannabis use is legal, employers can still have policies that prohibit any cannabis use by employees.

"As such, in states with laws similar to California, cannabis use can still be restricted in the workplace unless state law is changed," Reimbold said.

New Jersey and New York, however, passed cannabis laws that include employment protections. New York's law prohibits employment discrimination against people who lawfully use marijuana off duty, while New Jersey's law protects anyone who uses marijuana, and it prohibits adverse employment actions based solely on a positive marijuana test result.

"The trend is growing across the states to grant employment protections for both adult use and medical use," said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. She noted that employers can still discipline workers for being high on the job or for bringing cannabis products onto the premises.

Adapting to Changing Attitudes

Regardless of what happens at the federal level, cannabis laws will continue to expand at the state level as attitudes about marijuana use change.

According to a 2021 Gallup poll, about 68 percent of Americans favor legalizing marijuana—the highest measure in more than 50 years of polling. Additionally, a 2021 survey from the Pew Research Center found that 91 percent of U.S. adults support some sort of marijuana legalization, with 60 percent of survey respondents saying marijuana should be legal for medical and recreational use, 31 percent saying it should be legal for medical use only, and 8 percent saying marijuana should not be legal at all.

Widespread cannabis use is evidenced by the increasing number of people failing marijuana tests. In 2021, positive drug tests soared to their highest level in two decades, according to Quest Diagnostics, which provides drug-screening services. Positivity rates for marijuana in the general U.S. workforce rose 8.3 percent (from 3.6 percent in 2020 to 3.9 percent in 2021). The 2021 number represents the highest positivity rate ever reported in Quest's drug-testing index.

Despite the uptick, many employers are hesitant to test workers as they struggle with staffing shortages. "Many employers have dropped THC from their pre-employment drug panels," observed Trisha Zulic, SHRM-SCP, director of human resources, business operations and strategy for WSA Distributing Inc. (via Efficient Edge) in San Diego. THC is the psychoactive component in cannabis.

Instead, employers are choosing to focus on reasonable suspicion of on-the-job impairment. Regardless of marijuana's legal status, employers don't have to tolerate on-the-job use or intoxication. "So reasonable-suspicion tests still make sense, because employees can't come to work impaired," said Kathryn Russo, an attorney with Jackson Lewis in Long Island, N.Y.

Employers should train managers and supervisors on ways to reasonably observe when someone is working under the influence. For example, testing based on reasonable suspicion could be triggered when an employee has slurred speech or is argumentative, irritable or nonresponsive. The observed behaviors and reasons for requiring the employee to undergo drug screening should be thoroughly documented.

Zulic noted that employers are working with their workers' compensation insurance carriers and employment law attorneys to make the best decisions on their testing policies.