Chronic Considerations: Employment Implications of Marijuana Legalization

Marijuana use is legal in seventeen states and the District of Columbia, and an additional nineteen states allow its use for medical reasons. In the last six months, New Jersey, New Mexico, New York, and Virginia have passed legislation allowing the recreational use of marijuana. Ten years ago, marijuana was not legal in any state. The brisk pace of marijuana legalization at the state level raises significant questions about the enforcement of workplace drug policies, especially where those policies are required by federal law. At the federal level, marijuana is still illegal, is still covered by the Drug-Free Workplace Act, and is still prohibited under Department of Transportation testing requirements.

Employer Considerations

In this rapidly evolving landscape, employers face complex issues when dealing with drug-free workplace and testing policies. Employers are advised to consider the following key issues:

• Interplay Between Federal and State Laws: Federal agencies governing employers in performing public safety and national security functions generally require drug-free workplace policies and federally mandated drug testing. Employers in safety-sensitive transportation industries, such as trucking, railroads, and aviation, must comply with vigorous drug-testing requirements by the Department of Transportation, including prohibitions on the use of marijuana. In addition, the Drug-Free Workplace Act of 1988 (DFWA) requires federal grantees and contractors to implement a drug-free workplace policy and establish a drug-free awareness program as a precondition for receiving a federal grant or a contract. Notably, DFWA does not require covered employers to test employees for drugs or terminate them for drug-related violations. When implementing workplace policies concerning the possession and use of marijuana, employers must consider how state marijuana laws interact with such policies and with other federal laws. Where employers are required to obey federal laws in their implementation of drug policies, they must comply with the federal mandates even if those mandates directly conflict with state laws. However, in instances where an employer could comply with state law marijuana mandates without directly running afoul of federal law, an employer should comply with state law.
• Drug-Free Workplace Policies: Although employers' obligations and restrictions related to marijuana use vary widely, no law requires employers to allow marijuana use during work hours or to allow an employee to report to work impaired. Employers may continue to maintain drug-free policies at the workplace and discipline employees who use marijuana during working hours or who report to work impaired. However, some states expressly prohibit employee discipline for off-duty use of marijuana. For example, New York law prohibits employment discrimination against an employee who uses marijuana off-duty, and New Jersey law prohibits any adverse employment action based on an employee's positive test for marijuana.
• Medical Use of Marijuana: Employers must also consider whether the state law in which they operate protects employees' use of marijuana for medical reasons and under some circumstances grant an employee's request for a reasonable accommodation. For example, Massachusetts disability discrimination law expressly entitles an employee who uses marijuana to treat a disability to a reasonable accommodation. In Nevada and Vermont, employers must engage in an interactive process and attempt to accommodate the reasonable needs of medical marijuana users under state disability discrimination laws.
• Drug-Testing Procedures: Employers required to perform federally mandated drug testing must continue to maintain their zero-tolerance drug policies. However, in states where recreational or medical marijuana has been legalized, employers may need to develop new drug-testing protocols to detect marijuana intoxication based on behavioral issues and avoid traditional tests that detect metabolites remaining in a person's body for many days after using marijuana.

Employers face an increasingly complex task of navigating rapidly evolving marijuana laws, which vary widely from state to state. Recent developments in New York, New Jersey, New Mexico, and Virginia are described below.

Recent Developments in State Law

• New York: On March 31, 2021, New York enacted the Marihuana Regulation and Taxation Act (the Act) and joined the growing number of states that allow the possession and recreational use of cannabis by adults. The Act prohibits employee discipline for the employee's possession or use of marijuana outside of work hours, off the employer's premises, and without the use of the employer's equipment or property. But the law does not prevent employers from continuing to prohibit disciplining employees who exhibit specific articulable symptoms that impair the employee's performance while working or if the employee's impairment interferes with the employer's obligation to provide a safe and healthy workplace. Employers may take adverse action against employees' use of cannabis outside of work hours, if the employer's actions are required by state or federal law, or the employer's compliance with the Act would violate federal law or result in the loss of a federal contract or funding. This carve-out recognizes employers' need to comply with federal obligations, including those imposed upon federal contractors and grantees.
• New Jersey: In February 2021, New Jersey legalized the recreational use of marijuana for adults. New Jersey employers may not take any adverse action against an employee because of the employee's use of marijuana outside of the workplace and may not consider a broad range of marijuana-related prior offenses in making employment decisions. The law allows employers to maintain drug-free policies in the workplace, including testing employees for intoxication under certain circumstances. However, employers must adhere to rigorous testing procedures, including performing scientifically objective testing and physical examination by a certified workplace impairment recognition expert.
• New Mexico: New Mexico's recreational marijuana law will take effect in June 2021. The law explicitly permits employers to maintain and implement a written zero-tolerance drug policy regarding the possession and use of marijuana in the workplace, including testing for cannabis intoxication and imposition of discipline for non-medical marijuana users.
• Virginia: Effective July 1, 2021, Virginia is set to decriminalize adult possession of marijuana in a small amount. However, the law does not restrict employers' right to prohibit possession and intoxication in the workplace.

Employers are encouraged to continue to monitor developments and exercise a high level of caution before taking action against an employee for off-duty use of marijuana. If your organization has any questions about the implications of marijuana legalization, please contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.

© 2021 Venable LLP. Using, distributing, possessing, and/or selling marijuana is illegal under existing federal law. Compliance with state law does not guarantee or constitute compliance with federal law. This informational overview is not intended to provide any legal advice or any guidance or assistance in violating federal law.

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