More States Legalize Recreational and Medical Marijuana

Voters overwhelmingly approved state ballot measures to permit marijuana use

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP November 10, 2016
More States Legalize Recreational and Medical Marijuana

The trend to legalize marijuana continued on Nov. 8 as voters in nine states cast ballots on the issue, and all but one of those measures was approved.

"Attitudes seem to be changing about marijuana use," said Danielle Urban, an attorney with Fisher Phillips in Denver.  "Of course, some people don't think it should be legal, but overall many people appear to think that the money and efforts spent on enforcing marijuana laws should be spent on other priorities."

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The groups lobbying on behalf of the marijuana industry have argued that legalization will create jobs, increase tax revenue and lessen burdens on the criminal justice system, explained Austin Smith, an attorney with Ogletree Deakins in Denver. "They tend to make a holistic argument that it makes better sense to legalize and regulate the industry than keep it underground."

This Election Day, voters in Arkansas, Florida and North Dakota approved the use of medicinal marijuana, and Montana residents decided to lighten up some restrictions in the state's existing medical marijuana law. 

In five states where medicinal use is already permitted—Arizona, California, Maine, Massachusetts and Nevada—voters got to decide whether to also permit recreational use for adults age 21 and older.

California, Maine, Massachusetts and Nevada voters approved such measures, whereas Arizona voters did not.

There are now 28 states, along with Washington, D.C., that have legalized marijuana use for at least medicinal purposes.

Nov. Ballot Measures:
Medical use
Recreational use
Existing Laws:
Medical use only
Legalized recreational and medical use
States that permit limited use of low-THC products are not highlighted on this map.
Click on a state for more information about its marijuana laws.

States to Watch

A decade ago, California was the first state to enact a comprehensive medicinal marijuana law, and it will now join Alaska, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington state and Washington, D.C., in also permitting adult recreational use.

California will be an interesting state to watch because it has one of the largest economies in the world, Urban said.

Smith said that California will likely take Colorado's place in leading marijuana sales.

"California has been the state everyone wondered about," he added. People will be looking at how many recreational-use dispensaries are approved and how much product will be available to the market. He noted that California has had the benefit of watching how legalization unfolded in Colorado.

What happens in Arkansas and Florida will also be worth noting because the southern states generally haven't tolerated any marijuana use, Urban said. It will be interesting to see if their medicinal laws are a pathway to legalizing recreational use in those states and if these new laws prove to be an inroad into the South, she added.

Federal Enforcement?

Marijuana use remains illegal at the federal level, but the Department of Justice hasn't targeted state-sanctioned use of the Schedule I drug in recent years. Instead, the department's enforcement priorities include stopping distribution to minors and preventing marijuana sales revenue from going to criminal enterprises.

While President Barack Obama's administration made the decision not to enforce federal laws that conflict with state marijuana laws, it's difficult to predict if President-elect Donald Trump's administration will take the same stance, Urban and Smith each noted.

The answer may depend on who is appointed as the new U.S. attorney general, Smith said.

Impact on Workplace

Now is the time for employers to determine how they are going to deal with new marijuana laws, Smith said.

If employers decide to still maintain a zero tolerance policy, they should clearly communicate that with employees, he added.

Employers may also want to specifically address medicinal marijuana use in their policies, Urban said.

Particularly if they are card holders for medical marijuana, employees may think that because it is legal, they are protected, she noted. However, only a few states actually provide employment protections for card carriers.

Employers should also note that some states, like California, have very restrictive drug-testing rules, Smith said. Therefore, if employers want to test employees more often, they need to know what limits their state puts on drug testing.  

[SHRM members-only HR Q&A: Are employers in California legally allowed to test employees for drugs or alcohol?]

There were a lot of employment-related measures on state ballots, including proposed minimum wage increases and paid-sick-leave measures, Smith added. Marijuana laws are very much employment-related too, and how states treat marijuana use directly impacts the workplace, he said.

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