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Note: This article is not intended to be legal advice and should not be substituted for legal advice. Please seek independent legal counsel before implementing any policies, procedures, or disciplinary actions.
By Vicky A. Bufano, Faculty Member, School of Security and Global Studies, American Public University
Marijuana use, its manufacture, and legalization in the United States have become a fiery issue. Many states are now legalizing the medical use of marijuana, while others either have legalized, or are in the process of legalizing, its recreational use as well.
Problems arise, however, when federal law conflicts with state law. What should employers do when an employee legally obtains a medical marijuana permit or is in a state where the recreational use of this drug is allowed?
Medical Marijuana and Its Legal Challenges
According to the U.S. Drug Enforcement Administration (DEA), marijuana is considered a Schedule I illegal drug under the Title 21 United States Code Controlled Substances Act. That means a person may not use, possess, manufacture, or distribute the drug, even for medical reasons.
Other Schedule I drugs include heroin, codeine, mescaline, and peyote. The federal government has classified them as illegal drugs due to the high potential for abuse and the lack of safety for use in medical treatment.
In several cases, the Supreme Court has upheld federal law, stating there is no medical necessity that would allow the manufacture and distribution of illegal drugs, and specifically, marijuana. One such case was United States v. Oakland Cannabis Buyers’ Cooperative in 2001.
But in 2009, then-Attorney General Eric Holder gave recommendations for federal prosecutors in states that had legalized the use of medical marijuana. He stated that federal resources should not be expended to prosecute individuals who are complying with state laws on the medical use of marijuana.
Furthermore, the Department of Justice and Congress both made it clear in 2016 that they would not challenge laws legalizing marijuana. Also, federal funds would not be used to stop states from implementing laws that allow the use of medical marijuana.
DEA Refused to Downgrade Marijuana to a Schedule II Drug
In 2016, the DEA declined to downgrade marijuana to a Schedule II drug. If marijuana had been downgraded, its medical use would have been legal.
The Trump administration supports marijuana for medical use. On May 5, 2017, President Trump signed H.R. 244, a spending bill that partially continued to prevent the Department of Justice from using federal funds to stop states from enacting medical marijuana laws.
While medical marijuana seems to be more widely accepted in the United States, its recreational use is still up for debate and decision. In addition, marijuana use, whether medical or recreational, is still illegal under federal law.
Must Employers Allow Employees to Use Marijuana at Work?
Currently, Alaska, California, Colorado, the District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington state have recreational marijuana laws. In those states, marijuana is treated similarly to alcohol, but employers do not have to permit marijuana to be used in the workplace.
Some states allow employers to enact employment policies that prohibit the use of marijuana. In addition, these states do not force employers to make accommodations for employee use of marijuana.
None of these states provides rights on employees in the workplace or prohibits employment discrimination. Maine was an exception until last year.
Maine’s recreational marijuana law previously made it unlawful for employers to refuse employment on the sole basis that the job candidate used marijuana off the employer’s property. However, a new law took effect in 2018. It allows employers to enforce policies within the workforce that restrict marijuana use. Employers are also allowed to take disciplinary measures based on those policies.
When it comes to recreational marijuana use, employers can have policies that prohibit the drug’s use and possession while employees are at work. In addition, employers can prohibit employees from being impaired by marijuana while at work.
Drug Testing and Medical Marijuana Use
Since drug testing cannot show where marijuana was ingested, it will be hard to prove that it was consumed while an employee was at work or on work premises. In some states, employers are permitted to have substance abuse policies to:
- Put employees on notice that drug tests will occur;
- Warn employees that recreational use of marijuana might cause a positive test result; and
- Outline what the policy is concerning a positive result on a drug test.
Medical Marijuana Laws Vary Throughout the US
Currently, 33 states and the District of Columbia have medical marijuana laws. Ohio, for example, allows employers to have a “zero tolerance” policy on drugs. Also, Ohio does not permit employees to sue if an employer takes disciplinary action against employee use of medical marijuana.
Some states have low risk for employers through case law. For instance, California, Colorado, Michigan, Montana, New Mexico, Oregon, and Washington have laws where employers have been successful against employee use of medical marijuana.
Washington, D.C., and some states have not had employment issues or litigation regarding medical marijuana. These states include:
- New Hampshire
- New Jersey
- North Dakota
Courts in Rhode Island Disagree on Discrimination of Medical Marijuana Users
In May 2017, a Rhode Island court stated that employers could refuse employment to a person who held a medical marijuana card, even if the person failed a pre-employment drug screening. The court stated there was a difference between medical and non-medical use of marijuana and that an employee’s actions on his or her own time did not purport responsibility on the employer.
However, on appeal, the Superior Court of Rhode Island stated that the lower court’s ruling was illegal and employers may not otherwise use a medical marijuana cardholder’s use of the drug against a job candidate. But employers can still prohibit the use of marijuana in the workplace.
Law Enforcement Agencies Need to Remain Aware of State and Federal Laws Regarding Marijuana Use
Law enforcement agencies must be particularly cognizant of changes in the law in their state and implement policies that are clearly communicated to their officers. Law enforcement officers must take an oath to uphold both state and federal laws. These agencies must also determine what is to be done if an officer obtains a permit for medical marijuana use, tests positive for marijuana, or uses marijuana recreationally.
Furthermore, in September 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published a letter to all federal firearms licensees, clarifying the law on firearm possession. The letter states that federal law 18 U.S.C. §922(g)(3) prohibits any person from receiving or possessing firearms and/or ammunition if that person unlawfully uses any controlled substance or if is reasonably known that the person would use a controlled substance.
Since marijuana is a controlled substance and federal law allows no exceptions for medicinal use of the drug, it is illegal for a person to possess a firearm if the person is a user or has the reasonable capability of using marijuana. If a person has a medical marijuana permit or card, this constitutes as “reasonably knowing” that person would use the marijuana. Consequently, the person is prohibited from possessing a firearm and ammunition.
Law enforcement agencies need to be aware of this law and provide guidance to law enforcement officers that even obtaining a permit for medical marijuana would jeopardize his or her ability to carry a firearm and thus his or her job as a law enforcement officer.
Medical Marijuana Laws Involve Complex Issues for Employers
Employers in states that have legalized marijuana use for medical purposes have to balance several interests. Organizations must comply with federal and state laws and provide employees with a safe and productive workplace.
At the same time, employers must also accommodate, when reasonable, employees with disabilities that may require medical marijuana. But employers do not have to tolerate the use, possession, sale, or purchase of this drug at work. Furthermore, employers do not have to accommodate marijuana use at work or tolerate an employee being impaired at work, even if that employee uses medical marijuana.
About the Author: Vicky Bufano is a part-time instructor in the School of Security and Global Studies at American Public University. She holds a B.S. in legal studies from the University of Central Florida and a J.D. in law from Gonzaga University. In addition, Bufano is a lawyer in Florida and a member of the Washington State Bar Association. To contact the author, email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.