During this recent election season, in addition to choosing the next President of the United States, voters in many states had a hand in dictating the future of legal marijuana use in this country.  Previously, only Colorado, Washington, Oregon, Alaska and the District of Columbia had legalized marijuana for recreational use, while more than 20 other states allowed it for medical purposes.  However, on November 8, 2016, ballot initiatives around the country resulted in significant changes to marijuana laws in eight states.

Specifically, voters in Arkansas, Florida, North Dakota, and Montana chose to either establish or expand their medical marijuana programs.  More significantly, voters in California, Nevada, Massachusetts, and Maine approved initiatives legalizing marijuana for recreational use for individuals over the age of 21. The primary purpose of the new laws in California, Nevada, Massachusetts, and Maine is to decriminalize the adult use of marijuana for recreational purposes, as well as to regulate marijuana cultivation, distribution, sale, and use.  In most respects, these states will begin to treat and regulate marijuana in a similar manner to the ways in which they currently treat and regulate alcoholic beverages.  As with states that have previously legalized marijuana for recreational use, these new laws are geared towards removing criminal penalties for users, and generally fail to specifically address workplace issues.  Thus, while these new laws provide considerable changes in drug laws overall, they fail to clarify many aspects of the law that are particularly confusing for employers.

One particularly confusing aspect for employers in navigating marijuana laws is that regardless of the state in which they operate, marijuana remains classified as a Schedule I substance under the federal Controlled Substances Act, which means that it is still illegal at the federal level.  These new state laws do not change this fact, and generally do not create specific employee rights or prohibit discrimination against employees who use marijuana. Nor do they provide employees with job protection for recreational use.  As a result, an employer may still enforce its drug-free workplace policy or take any other steps to maintain a drug-free workplace and/or prohibit the use of marijuana by applicants or employees.  For example, an employer can prohibit possession or use of marijuana on their premises while an employee is on or off duty, as well as prohibit employees from being under the influence.  This is the likely case even if an employer operates in a state with an “off-duty conduct law” designed to protect employees who engage in lawful activities outside of work.  The reason for this is that the word “lawful” in such applicable statutes has been interpreted to mean lawful under both state and federal law and, as discussed above, marijuana is still illegal under federal law. Thus, a state’s off-duty conduct law would not prohibit the termination of an employee despite that state’s legalization of marijuana.

In the medical marijuana context, Arizona, Delaware and Minnesota do provide some protection for employees who test positive for marijuana use and have medical authorization, but they are the only three states that currently include such explicit protection.

An employer also may continue to perform drug tests on employees or applicants without reasonable suspicion.  An employer is not required to permit or accommodate marijuana use as a reasonable accommodation.  Finally, an employer can lawfully terminate an employee for marijuana use and/or lawfully refuse to employ an individual who fails a drug test.  Prior to taking such action, however, an employer should consult with legal counsel, as the legal landscape in this area is rapidly changing.  Indeed, since support for the issue has reached a tipping point, it is likely that, in the foreseeable future, the federal government will loosen its marijuana restrictions, which could result in new employee rights in this area, both at the state and federal level.

Going forward, employers will begin to face various questions concerning the use of marijuana by applicants and employees.  With medical and recreational marijuana use increasing at the state level, employers need to face practical issues (in addition to legality issues) concerning drug testing, possession or use of marijuana on work premises or during work time, dealing with employees potentially under the influence, and what they can or cannot do if an employee is legally prescribed marijuana for treatment of a medical condition.  Because marijuana use is now legal in so many states (either for recreational or medicinal use), it may get increasingly more difficult for employers to find workers in those states who either can pass a criminal history check or a drug screening.  While most states do not restrict employers from enforcing their drug-free workplace policies, employers who currently perform pre-hire drug testing in states where marijuana use is now legal may want to consider whether pre-hire drug testing is still necessary.

One potential option for employers to consider is to move towards policies of only testing employees based on reasonable suspicion.  Employers should be aware, however, that the Occupational Safety and Health Administration(OSHA) has promulgated new recordkeeping requirements that, among other things, prohibit employers from performing drug tests on an employee who reports a workplace injury unless the employer has a reasonable basis for believing that drug use caused or contributed to the injury.  According to OSHA, the rule is tailored to prohibit only “drug testing for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.”  Thus, when dealing with work-related injuries, an employer should consult with legal counsel (and in particular an OSHA specialist) prior to mandating a drug test. Another option is to replace traditional urine testing (which may detect an infrequent user’s marijuana usage for up to about four days) with oral fluid testing, which detects usage within a much shorter 24-36 hour time frame prior to a test.  Of course, if an employer is concerned that an employee’s marijuana use will result in safety concerns or otherwise put the company at risk, it should continue to test for the substance.

Thus, with the passage of these new laws, employers should review and evaluate their current employment practices and policies, with a particular focus on drug use and drug testing polices (including use during business functions similar to alcohol exceptions), medicinal versus recreational use (including requirements for reasonable accommodation), and workplace conduct policies.  Employers should make sure that their policies specifically address marijuana and how it should be treated.  If, for example, your policy currently only refers to illegal drugs, but is intended to include marijuana, the policy should be amended to specifically address marijuana, especially in states where medical and/or recreational use is legal.  Further, an employer may want to create individual policies that specifically address marijuana use in light of these new laws, so that employees are informed of the current legal standards and do not mistakenly think that workplace laws have changed as a result.  Finally, employers should make sure to continue to monitor and/or frequently consult with legal counsel regarding this ever-changing area of the law.