Marijuana Legalization and Employer Drug Testing

Roundup on latest marijuana laws, court rulings, and trends and what all of this means for employers considering drug testing or Drug Free Workplace policies.

Recently, Oregon’s legal recreational marijuana market made its official debut, less than a year after the state’s voters legalized recreational marijuana sales. Oregon now joins Colorado and Washington as the only three states to legalize recreational marijuana sales. Voters in Alaska passed similar legislation, but the law has not yet taken effect. Recreational marijuana use is also legal in Washington, D.C., although the legalization does not extend to marijuana sales. Next year, voters in states including Arizona, California, and Maine will vote on legalizing recreational marijuana sales. Medical marijuana is currently legal in 23 states, and Washington, D.C. Read on to see how these changing laws will impact workplaces around the country.

Map of marijuana laws courtesy of the Los Angeles Times (2015)
Map of marijuana laws courtesy of the Los Angeles Times (2015)

Views toward marijuana in this country are evolving.  States are not just legalizing marijuana for medical use, but expanding those laws to protect recreational use and sale.  Oregon has perhaps the most sweeping legalization laws.  In Oregon, medical marijuana has been legal since 1998, but now pot can be legally sold in the state for recreational use, and anyone who is at least 21 years old is able to buy it. Oregon’s new law also requires courts to use the standards of the current law, under which possessing, growing and selling marijuana are all legal, when considering records-clearing applications, and allows for faster record-clearing for people who were under 21 at the time of a past conviction for marijuana possession or sale.  This means that Oregon’s law has not just legalized recreational use of marijuana, it has offered individuals convicted of possession of marijuana prior to the passage of the new law an opportunity to erase it from their criminal record.

On the other end of the spectrum is federal law, which treats marijuana no differently than controlled substances such as cocaine and heroin. The federal government places every controlled substance in a schedule according to its perceived potential for abuse and medicinal value. Under the Controlled Substances Act (“CSA”) (21 U.S.C. § 811), marijuana is classified as a Schedule I drug, which means the federal government views marijuana as highly addictive and having no medical value. Doctors may not prescribe marijuana for medical use under federal law, but they may recommend its use under the First Amendment.

While marijuana remains illegal under the CSA, which does not recognize a difference between medical and recreational use of marijuana, the number of states passing laws to legalize marijuana in some form has grown in recent years and several more states are expected to vote on further legalization before the end of next year.

So what does all of this mean for employers wishing to regulate marijuana use?  Can employers continue to test for marijuana?  And if they can, should they?  If legalization is the wave of the future, should employers adopt more flexible standards regarding marijuana use outside of the workplace, and what liability will they face if they do?

In states across the country, employers are facing a growing number of medicinal and recreational marijuana statutes; and must weigh the possible impact of these laws on employer drug testing and drug free workplace policies. By their terms, the laws decriminalize marijuana use for medical and/or recreational purposes, but few of these laws address the impact of legalization of marijuana on employers and the workplace.

Most of the states that have enacted medical marijuana legislation have statutory language that provides no civil protections for marijuana users, including employment protection. In fact, supreme courts in California, Oregon, Washington, Colorado and Montana have all upheld employer decisions to discharge employees that were medical marijuana patients; and similar cases are being litigated in states like Massachusetts.  The plaintiffs in these lawsuits have made a number of arguments, including that medical marijuana users are protected under public policy and discrimination laws.

Up to this point, the courts have held that the medical marijuana statutes only protect patients from criminal sanctions and do not create any civil remedies or protections. They have also relied on the fact that marijuana remains illegal under federal law.  As such, the courts have held that medicinal marijuana laws do not create a public policy for purposes of a wrongful termination claim or establish a protected class for medicinal marijuana users.  Courts have also found that federal law preempts any argument that an individual is protected from disability discrimination on the basis of medicinal marijuana use.

Yet, despite the federal law, a growing number of states including Connecticut, Illinois, Maine and Rhode Island, are passing legislation that prohibits employer discrimination against medical marijuana patients and/or caregivers.  Laws in Arizona and Delaware go as far as to bar employers from discriminating against qualified patients who fail a drug test for marijuana metabolites or components. Although these laws allow employers to act on the results of a failed drug test where the employee used, possessed, or was impaired by the drug on the employer’s premises, blood and urine tests are not considered reliable for purposes of measuring marijuana intoxication. Thus, employers in these states may have a difficult time showing employee impairment on the basis of a drug test alone.

The question remains, how should employers, particularly national employers operating in a number of states respond to the increasing legalization of marijuana in our country?  

In many states, employers who discover marijuana use through drug testing may refuse to hire, or may discipline or terminate an employee for a positive marijuana test.  This is true even if the marijuana use was outside working hours, the use was for medicinal purposes, and even if the employee never exhibited any signs of use during work. Under federal law, marijuana remains a controlled substance, and the Drug-Free Workplace Act requires federal contractors to prohibit the “unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance” by employees in their workplace as a condition of employment. See 41 U.S.C. § 8102(a). Federal grant recipients are subject to these same restrictions. Individuals that are not companies cannot receive federal contracts or grants under the law unless they agree not to “engage in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance” throughout the performance of the contract or grant. 41 U.S.C. §§ 8102(a)(2), 8103(a)(2).

Although more and more private companies are modifying their drug testing programs to allow for exceptions related to legal marijuana usage, in most states this is a voluntary change, not a legally mandated one. Presently, employers still have wide latitude when implementing drug testing programs, including a blanket prohibition against marijuana use by employees; but as laws change and more cases by terminated employees are filed, it becomes more likely that an employer’s right to prohibit all marijuana use will be impacted.  As such, in lieu of a blanket prohibition, employers should consider a drug policy tailored to the individual workplace, its unique safety issues, and the laws of the jurisdictions in which it operates.

As a preliminary matter, employers should consider whether, and under what circumstances they will conduct drug testing. Depending on the laws of the state in which the employer is operating, pre-employment drug testing, random drug testing, reasonable suspicion testing, and post-accident drug testing may be utilized by employers.  Yet drug testing can have its limitations, and may not by itself be the most effective means of managing drug use and abuse in the workplace.

Increased availability of marijuana means that employers should expect that employees may be using marijuana outside of the workplace.   At the same time, often drug tests cannot differentiate whether a person has THC metabolites is his or her system from prior use, or if a person is currently under the influence of marijuana.  This means that random drug tests may come back positive for an employee who was not impaired while working; and employers do not have a reliable way of testing an employee to determine whether the employee is under the influence of marijuana while on the job.

All employers will benefit from a strict zero-tolerance policy prohibiting the use of drugs (including marijuana) and alcohol while working.  When consistently enforced, such a policy can be very effective in minimizing the employer’s exposure to employee claims and injuries.  Employers should also train supervisors and managers to recognize signs of impairment (whether due to marijuana, alcohol, or other substances) and appropriately handle inquiries from employees regarding their use of medical marijuana or any other substance that may impact employee performance and safety.  Effective training and strictly enforced policies are always a best practice, and may be an employer’s most useful weapon in combatting employee drug use.

The information provided in this blog is general and is not applicable to all situations.  It is not intended to be specific legal advice.  If you have questions about this or any employment law matter, visit for more information about our firm and the services we provide.

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