The legal landscape relating to the permissible use of medical marijuana in the United States is evolving rapidly, presenting employers with a complex legal environment to navigate, with states taking varying stances on the legality of marijuana. Once universally prohibited, marijuana has seen a transformation from a stigmatized substance to, in some states, a recognized therapeutic agent. The legislative reform taking place across the nation has created a dynamic legal environment.
Current State of Legality
Currently, twenty-four states (and the District of Columbia) permit the use of marijuana for recreational use. Thirty-eight states allow its use for medical purposes. Eighteen states have legalized the medical use of CBD products for the treatment of health issues. Despite these state laws, marijuana remains federally banned unless and until it is formally legalized by federal legislation. Even amidst ongoing discussions about potential federal decriminalization under the Biden administration, the federal ban remains in effect when it comes to recreational marijuana use.
Recent Federal Proposals
The Drug Enforcement Administration (DEA) recently suggested a reclassification of marijuana from a Schedule I substance, alongside heroin and ecstasy, to a Schedule III substance, with ketamine and anabolic steroids. Schedule I substances, due to their high potential for abuse, are illegal to be produced, distributed, or possessed under federal law. On the other hand, Schedule III substances are permitted for accepted medical use with a prescription due to their lesser risk of abuse. The DEA’s proposal followed a report from the Food and Drug Administration (FDA), which stated that marijuana has a legitimate use for medical purposes. The DEA’s proposed change must now be submitted to the White House’s Office of Management and Budget, which will review the proposal and decide whether to approve it. Many steps remain in the regulatory review process before the rescheduling of marijuana will take effect, but such a change will have significant implications. The reclassification would alleviate some restrictions concerning medical marijuana, but recreational marijuana would remain illegal. Thus, this decision would not affect the production, distribution, or possession of recreational marijuana.
Recent North Carolina Updates
In June of this year, the North Carolina Senate passed a medical marijuana bill, House Bill 563. This bill would legalize medical marijuana in the state of North Carolina for those with serious illnesses like cancer and ALS. As the bill awaits a House vote, employers should proactively begin contemplating potential changes to workplace policies and prohibitions.
Employer Guidance and Advice
Private employers are entitled to enforce their own policies. They can prohibit employees from using marijuana on the job for either medical or recreational purposes, regardless of whether a state or federal law permits its use. Most state laws give businesses the ability to maintain a drug-free workplace and prohibit the consumption of cannabis while at work. Thus, private employers are not required to provide accommodations for employees who wish to use, possess, or distribute medical marijuana.
Drug Testing
Employers are generally permitted, although not required, to test employees for the presence of drugs in compliance with state law. Employers may choose to treat marijuana like alcohol and allow employees with medical marijuana authorization cards to consume cannabis when they aren’t working, so long as they are not under the influence when they clock in to work. It is worth noting, however, that this status is not as clear-cut as it generally is with alcohol consumption, as it can be tricky to determine whether an employee is actually under the influence of marijuana since the drug can stay in an individual’s system for as long as thirty days. Currently, there is no test available to determine if a person is feeling the effects of marijuana. Therefore, workplaces cannot accurately determine whether someone is clear of the drug’s effects at work.
Employers should be slow to jump to conclusions and careful when disciplining legitimate medical marijuana users if they are in a state in which the use of medical marijuana is legal. A workplace drug testing policy should focus on work-related hazards as opposed to testing for general use. Employers should refrain from automatic disciplinary actions against medical marijuana users solely based on positive drug tests, especially in states where marijuana use is legal. Suppose a random drug test reveals that marijuana is in the applicant or employee’s system, but the individual does not appear to be impaired. In that case, termination of employment or withdrawal of a job offer is likely not warranted in states where marijuana use is legal unless the employee is in a safety-sensitive position, such as a service technician, or under a federal contract mandating such a decision.
State Laws on Employment Discrimination
Some states have laws protecting medical cannabis patients from employment discrimination, although such laws have a limited impact.
For example, in Rhode Island, employers cannot refuse to hire medical marijuana patients who do not pass a drug test. Still, the state does not allow anyone to undertake tasks when they are under the influence of marijuana if doing so would constitute negligence or professional malpractice. In addition, the Rhode Island law concludes that “nothing in this chapter shall be construed to require an employer to accommodate the medical use of marijuana in any workplace.”
In New York, where both recreational and medical cannabis use are legal, employers are prohibited from testing current and prospective employees. Other states that have legalized marijuana use, like Nevada, prohibit job denial based on a positive cannabis test result.
Safety-Sensitive Positions
In some states that have passed employment discrimination laws based on marijuana use, exceptions for “safety-sensitive” positions have been adopted. These classifications for safety-sensitive positions range from any job “wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage . . .” (Iowa) to positions “in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another” (New Mexico). Regardless of where a definition of “safety-sensitive” falls on the spectrum, the theme of considering an employee’s specific job duties is consistent.
Employees in safety-sensitive positions are required to be drug-free. Therefore, even if an employee works in a state in which the use of medical marijuana has been legalized and has a valid medical marijuana prescription under the applicable state law, their employer may nevertheless implement policies prohibiting medical marijuana use due to safety concerns related to the nature of the employee’s safety-sensitive job. Further, the employee’s job description may mandate that the employee be drug-free under federal law. For example, if the employee operates a commercial vehicle as a part of his or her job, current federal law prohibits cannabis use, even if the employee does not appear impaired.
Bottom Line
Impairment should be the standard by which decisions are made. Employers are within their rights to prohibit marijuana use at work if such use causes impairment. If an employee is impaired at work and marijuana use poses a safety risk or impairs the employee’s ability to perform the required functions of their job, the employer is entitled to terminate the employee for violating its drug policy.
For employees who legally use medical marijuana and are not in safety-sensitive positions, employers should view medical marijuana use as they would other prescription medications taken for physical or mental health conditions. Be sure to conduct individualized assessments, engage in interactive dialogue with the employee, conduct safety and direct threat analyses, and examine whether there will be issues with federal law prohibitions before allowing the usage of medical marijuana at work. Require employees to disclose medications that may impact their ability to perform the job safely, including side effects and warnings. Individualized assessments are crucial, as some employees will be prohibited from medical marijuana use on the job, even if the employee believes they can perform their job without impairment.
By implementing fair and informed policies and diligently engaging in dialogue with employees, employers can effectively navigate the complexities of medical marijuana in the workplace.
Co-written with Andrea Renegar – 2024 Smith Debnam Summer Associate
Andrea Renegar is a 2024 Smith Debnam Summer Associate. She comes to Smith Debnam after recently completing her second year of law school at Campbell University. Andrea earned a Bachelor of Arts in Political Science and English & Comparative Literature from the University of North Carolina at Chapel Hill. Before enrolling in law school, she gained experience as a legal Assistant and paralegal.
