Pot Legalization a Foggy Issue for Employers

 Work travel recently took me to Colorado, one of 23 states plus the District of Columbia that has legalized the purchase and use of marijuana for medicinal purposes, and one of a few that also allows it to be used recreationally. The trip seems timely because next month, voters in my home state of Ohio will be presented with a measure that, if it were to pass, would make the Buckeye State the first to simultaneously ok the legal use of marijuana for both medicinal and recreational purposes.

Business organizations, including the Ohio Chamber of Commerce and Ohio Manufacturers’ Association, oppose the measure. Their concern is that marijuana legalization will further hamstring manufacturers’ ability to establish a workforce that’s sober, safe and focused on the tasks at hand, which is obviously imperative given the production equipment their employees operate. They also believe it will shrink an already limited pool of potential new hires for companies that require candidates to pass a drug test, the assumption being that marijuana use will increase with legalization.

However, fogginess clouds this issue in a couple of respects. First, how many people who currently don’t use marijuana will suddenly start using it if their state legalizes it? I envision increased use for medicinal purposes by those with conditions such as cancer, glaucoma, arthritis and others. Conversely, I’ve read studies that claim the recreational use of marijuana among adolescents hasn’t increased since it has been made legal in some states. Therefore, the true impact of marijuana legalization on overall consumption isn’t yet clear.

Second, even though some states have made marijuana use legal, it remains illegal under federal law. This seemingly puts employers with a zero-tolerance drug policy in a good position to discipline or terminate employees who fail a drug test, assuming that policy has been clearly communicated to the workforce. That said, the laws in a handful of states that have legalized medicinal marijuana contain anti-discrimination or reasonable accommodation provisions per the Americans with Disabilities Act that employers must keep in mind. This could lead to lawsuits filed by people who have used medicinal marijuana away from work during non-working hours, but failed a drug test. To date, terminations based on such failed drug tests have been consistently upheld by courts even in states where medicinal marijuana is legal. But who’s to say that will continue to be the case?

The key for employers is to review their current drug policy, amend if necessary, and clearly communicate that policy with employees. It is also important to stay abreast of changing state legislation and legal developments on this front. To help with that, here are a couple stories offering guidance for employers hoping to learn more about this continuously evolving matter:

“Anti-Discrimination Provisions in State Medical Marijuana Laws Raise Additional Considerations for Workplace Drug Testing” By Hunton & Williams LLP 

“Top Ten Considerations for Employers in States with Medical or Otherwise Legal Marijuana” By Lori Bowman, Ogletree Deakins