Marijuana at the Polls and in the Workplace

Voters in some states will get to weigh in on marijuana legalization this Election Day

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As more states consider legalizing marijuana this election season, many employers are wondering what that will mean for their workplace policies and practices.

It will be extremely challenging for employers, especially those with multistate operations, to adapt their policies as new laws are passed, said Kevin Griffith, an attorney with Littler in Columbus, Ohio.

Marijuana is still illegal under federal law, and state laws provide different levels of protection, if any, for employees who use it, he said.

Ballot Measures

To date, 25 states and Washington, D.C., have legalized marijuana use to some degree.

Three more states may be added to the list on Election Day, and six states where marijuana is already legal may ease their laws even more.

Registered voters in Arizona, California, Maine, Massachusetts and Nevada will get to weigh in on whether marijuana should be legal for recreational use by adults ages 21 and older. These states already permit medical marijuana use.

In Arkansas, Florida and North Dakota, voters will decide whether to legalize medical marijuana.

Finally, even though medical marijuana is already legal to a limited degree in Montana, voters will have a chance to relax certain restrictions imposed by the current law.

"There are so many ballot measures because of the pace at which the industry is growing, the political climate, economic prowess, and social reaction and acceptance related to the issues," said Tad Devlin, an attorney with Kaufman Dolowich & Voluck in San Francisco.

Furthermore, "the federal government has been much more nonprosecutorial in its war on drugs," he noted. 

Recreational Trend

About 82 million people live in states that could pass laws on Nov. 8 that would reduce current restrictions on marijuana use, according to Ballotpedia, a nonpartisan online voter resource.

The trend used to be for states to legalize medicinal use, but now it's shifting to recreational use, said Kathryn Russo, an attorney with Jackson Lewis in Long Island, N.Y.

Recreational use is currently legal in Alaska, Colorado, Oregon, Washington state and Washington, D.C., and the number of jurisdictions will double if all the 2016 state ballot measures pass.

"One of the reasons we are seeing more recreational laws is that states are starting to wake up and realize that marijuana is a very big source of tax revenue," Russo said.

Griffith mentioned that after recreational use was legalized in Colorado, the state saw a significant boost in economic opportunities in agriculture, warehouse leasing, digital marketing and horticulture.

"Even the food industry is involved in trying to make various types of edible marijuana that doesn't taste terrible," he added.

However, he noted that legalizing recreational use comes with a host of more complex legal, societal, political and health issues.

"There may be higher accident rates, not only on roadways but also in safety sensitive positions in the workplace," he said. "Another problem is containment of the sale and use of recreational marijuana within a state, county or city where it's been legalized. It's easily transferred into areas where it's not legal and that can frustrate law enforcement and create litigation between states.

"Using marijuana for medicinal purposes seems to be more commonly accepted throughout the country, in part due to anecdotal evidence from people who have said medicinal use has given them or a family member real relief," Griffith added.

States that permit medical, but not recreational, use include Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Rhode Island and Vermont.

Compliance Issues

Many laws clearly state that employers don't have to accommodate medical marijuana use during work hours or on company property, Russo said.

"Various state statutes that legalized the use of medical marijuana actually contain express statements that limit the scope of the statute regarding its effects on third parties, including employers," Devlin noted.

Some laws allow employers to continue enforcing zero-tolerance policies, but other laws include anti-retaliation language that protects off-duty use.

Russo said that in New York, certified medical marijuana users are covered under a law that requires many employers to provide reasonable accommodations for workers with disabilities.

On the other side of the spectrum, a medical marijuana law that recently passed in Ohio explicitly states that employers aren't required to accommodate any employee marijuana use.

The differences between state laws "create an unbelievable administrative headache for multistate employers," Russo said. And the best practices for developing workplace policies may vary from state to state.

Depending on the level of risk employers are willing to take, they can choose to say that marijuana is still illegal under federal law and the company follows federal law, she said. But some employers choose to incorporate the state provisions into their policies because they don't want to risk litigation under state law.

Although employers have prevailed on employees' state-law challenges to zero-tolerance policies, they may decide not to take the chance in a state where the issue has yet to be litigated.

When creating a policy, Griffith recommended employers start with a uniform workplace substance abuse policy and then consider whether it needs to be adjusted on a state-by-state basis.

Employers should pay attention on Election Day to which states pass marijuana measures, he said. If they have operations in those states, they should know whether the law covers medical or recreational use—or both—and whether the applicable laws offer any protections to employees or job applicants.

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