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New attorney general could change priorities
Under President Barack Obama, the Department of Justice (DOJ) hasn't focused enforcement efforts on stopping state-approved medical or recreational marijuana use, but that could change with the new administration.
Although all marijuana use is illegal at the federal level, the DOJ in recent years has spent its limited resources on priorities such as stopping distribution to minors and preventing marijuana sales revenue from going to criminal enterprises—not on medical or recreational use that is permitted under state law.
"In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities," the DOJ said in
a 2013 memorandum. However, the federal government reserves the right to change its position in the future.
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Uncertainty about the incoming administration's enforcement priorities combined with the proliferation of state legalization efforts may leave employers confused about how to develop their workplace drug-screening and substance abuse policies.
Eve Wagner, an attorney with Sauer & Wagner in Los Angeles said employers can still decide not to tolerate any marijuana use because it is a Schedule I drug under the federal Controlled Substances Act.
New Attorney General
It isn't clear what stance President-elect Donald Trump's administration will take on marijuana enforcement, but his U.S. attorney general nominee, Sen. Jeff Sessions, R-Ala., has a long history of opposing marijuana, according to Wagner.
The U.S. attorney general holds the top law enforcement position with the federal government and oversees all DOJ operations.
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"Jeff Sessions is very much a 'law and order' person, and he has clearly stated he isn't in favor of legalizing marijuana," said Matthew Nieman, an attorney with Jackson Lewis in Washington, D.C. However, both Trump and Sessions favor states' rights, he added.
"In terms of marijuana and legalization, I think that should be a state issue, state-by-state," Trump said at a 2015 political rally, according to
The Washington Post.
In 1986, during President Ronald Reagan's administration, the Republican-controlled Senate blocked Sessions's nomination to a federal judgeship. At that time, some of Sessions's colleagues testified that he made racially insensitive comments. Thomas Figures, a former assistant U.S. attorney, testified that Sessions "had considered the Ku Klux Klan an acceptable organization until he learned that its members used marijuana," the
New York Times reported in 1986.
A Senate confirmation hearing for Sessions is scheduled for Jan. 10.
Challenges for States
Wagner said it would be problematic if the federal government started enforcing marijuana laws that conflict with state legalization efforts.
Twenty-eight states have
legalized medical marijuana use, and eight of those states have approved recreational use (although not all of those laws have taken effect).
Federal enforcement could result in shutdowns for growers and dispensers, tax revenue losses for states, and arrests of registered certified users, Wagner said.
"It's hard to go backwards," she added. "There's also the concern that if you stop the supply chain, it could go underground again."
Regardless of what stance the new administration takes on enforcement, not much changes for employers.
In many states, including California, employers are currently still free to conduct post-offer drug tests and can fire employees for marijuana use, Wagner noted.
Even in states where employment protections exist for off-duty medical marijuana use, employers can still opt to have a zero-tolerance policy in accordance with the federal ban—but that option does come with some litigation risks.
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Courts have sided with employers in several states where zero-tolerance policies were challenged under state-law anti-discrimination provisions, but some employers may wish to avoid the litigation risk altogether.
"As with any HR policy, having a blanket policy can get a company into trouble," Nieman explained. Most employers don't want to be a test case in a state law challenge to their policy, he said.
Employers should think about the reasons they chose to adopt the policy they have, he added. Some businesses may decide they have too much at stake from a safety perspective to permit any marijuana use, he noted.
Regardless of whether employers decide to change their policies in light of new state-level marijuana laws, employers may want to consider sending a message to employees about the reasons behind their policy, Nieman said.
Employees may not have heard their employer's perspective on what a drug-free workplace means to the business, he added. "There is value in making sure employees know it isn't a political decision and that it's about providing a safe and productive workplace for everyone."
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