More States Legalize Marijuana Use

The movement to legalize cannabis consumption continued on Election Day as voters in five states approved new laws allowing medical and recreational marijuana use.

"In every state where marijuana legalization was on the ballot, it won," observed Brett Wendt, an attorney with Fisher Phillips in Denver. The trend toward legalization is here to stay, he said, so employers should consider revisiting their internal policies and seeking the advice of counsel with any questions or concerns.

In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters approved recreational use. Mississippi voters decided to legalize medical marijuana in the state, and South Dakota voters agreed to legalize both recreational and medical use.

Although all marijuana use is still illegal under federal law, 35 states now will allow medical use, and 15 of those states and Washington, D.C., also will allow recreational use.

"The election results regarding medical and recreational cannabis use are indicative of the wave of cannabis legalization that we are seeing across the country," said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. "New Jersey's results will likely be the spark to ignite legalization of recreational cannabis in many eastern states like New York, Connecticut and Pennsylvania."

The Mississippi vote to legalize medical cannabis is also interesting, she noted, as other southern states may follow suit.  

Cannabis Laws Vary

Employers should review their policies and practices to ensure compliance with new laws. "Most states already allow marijuana use for medicinal purposes, but the details of these laws vary," Wendt noted.

Under medical marijuana laws, covered patients and their caregivers generally must receive a certification from a medical practitioner and be registered with the state, but the qualifying medical conditions for which cannabis can be used can differ significantly from state to state.

[Visit SHRM's resource page on marijuana and the workplace.]

States may also pass employment protections to prohibit employers from taking adverse employment actions against employees due to their cannabis use or status as a registered medical marijuana patient, Mastroianni explained. 

New York and New Jersey, for example, have already codified certain employment protections for medical cannabis users.

"Further, employers should also be wary of any potential duty to accommodate medical cannabis users if medical cannabis is legalized," she said.

Employers never have to accommodate on-the-job marijuana use, but they may want to change blanket policies that exclude marijuana users from employment. A reasonable accommodation may not be available for a given job, but employers may need to make a good-faith effort to find one for registered medical marijuana patients, such as granting time off or altering shifts while the worker is medicated.

"Not surprisingly, state laws also vary greatly when it comes to the recreational use of cannabis," Wendt said. Each state that allows the use of recreational cannabis strictly regulates where it can be purchased and consumed and how much can be grown at home. He noted, however, that states that allow recreational cannabis use nonetheless make it clear that employers can usually discipline employees for violating a workplace drug policy.

"Drug-testing procedures may need to be modified as well," Mastroianni said. Under New Jersey law, for example, employers must comply with certain notification requirements if an employee tests positive for cannabis use.

A few jurisdictions, such as New York City and Nevada, prohibit employers from making an adverse hiring decision based on a pre-employment marijuana screen, but they allow for some exceptions.

"Given the added red tape, some employers may decide to stop testing applicants and employees for the presence of cannabis altogether," Mastroianni noted.

Review Policies

Employers grappling with new marijuana laws should be thinking about three major questions, according to Michael Freimann, an attorney with Greenspoon Marder in Denver:

• If the employer currently conducts drug tests, does it want to continue drug testing if marijuana use is legalized?
• What policies will need to be added or updated if new laws are passed?
• Will the employer be required to provide a reasonable accommodation for registered medical marijuana patients?

"Employers have an obligation to maintain a safe workplace, and employers who are federal contractors have obligations to comply with the Drug Free Workplace Act," noted Jill Vorobiev, an attorney with Reed Smith in Chicago. She said employers should have strong policies in place that address impairment at work.

Wendt suggested treating marijuana use like alcohol or prescription drug use. Marijuana screens don't show whether someone is currently under the influence the way that alcohol tests do, he said, so employers should consider stating in their policies that they will discipline an employee who displays behaviors of intoxication or impairment.

"Safety is paramount," Freimann said. "Take a step back and look at policies from a global perspective." Employers shouldn't sacrifice safety in light of the recent trend to legalize marijuana, he noted.

Which policies will best protect employee health and safety? Employers will need to decide whether they will have the same drug-testing policy for every role or if drug testing is more critical for some jobs than others. For example, different policies may apply to office workers than forklift drivers.

"The key takeaway from all of this is that employers need to clearly convey their policies to employees, modify their handbooks to comply with changing laws and apply discipline in a consistent manner," Wendt said.