Earlier this month, voters in five states took to the ballot box and legalized some form of marijuana use. Polls show that two-thirds of Americans now favor marijuana legalization, and 59% said it should be legal for both recreational and medical purposes. This is a sharp contrast to Gallup’s first poll on the issue in 1969, when only 12% of Americans favored legalizing marijuana. And the support isn’t entirely based on partisan lines: 55% of Republicans, a group that has traditionally fought against legalization, now favor it. This shift in America’s opinions and laws has left many employers dazed and confused, wondering how these changes will impact federal and state employment laws around the country.

The New Laws and Their Effects on Employers

Voters in Arizona, Mississippi, Montana, New Jersey, and South Dakota legalized marijuana use in some form. While Mississippi only legalized medicinal use, the other four states legalized marijuana for both medical and recreational purposes. However, these new provisions are not without limitations and safeguards. For example, in Montana, New Jersey, and South Dakota, only people over the age of 21 may use marijuana. In Mississippi, only those with a specified debilitating medical condition can obtain marijuana with the certification of a licensed physician. Notably, most of the laws directly address the rights and duties of employers in managing employees who legally use marijuana:

Arizona explicitly allows employers to “maintain drug-and-alcohol-free places of employment” and notes that the law does not “affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees.” Most notably, the law states that an employer is not required to allow or accommodate marijuana use or possession at work. Similarly, employers may still prohibit or regulate conduct that is allowed by the law but occurs on employer property.

Mississippi makes clear that it does not require employers to either accommodate for the use of medical marijuana or allow such use on employer property.

Montana explicitly states that nothing within the law requires an employer to “permit or accommodate conduct otherwise allowed by [the proposition] in any workplace or on the employer’s property.” Employers may still discipline employees, by declining to hire, discharging, disciplining, or otherwise taking adverse employment action, for violations of a workplace drug policy, use on employer property, or intoxication while working.

New Jersey’s law contains no information regarding the freedoms or obligations of employers.

South Dakota makes clear that employers are not required to permit or accommodate any conduct allowed by the proposition. Moreover, the South Dakota law does not “affect an employer’s ability to restrict the use of marijuana by employees.”

What Should Employers Do?

Because of the rapidly evolving marijuana laws, employers, especially multi-state ones, face a number of potential legal issues. Remember, marijuana is still illegal under the federal Controlled Substances Act (CSA), so any employee protections will stem from state law.

Your first step is to locate and review the relevant laws of the states in which you operate. This map indicates which states have legalized marijuana (either fully or for medicinal purposes) and includes a link to each of the relevant state laws. Some states’ laws, like the propositions above, explicitly state that they do not affect employer rights and obligations, while some explicitly provide protections to employees. Once you have looked over the applicable state law, here are some things to consider.

• Use on the Job: No state requires employers to allow employees to either use marijuana at the workplace or work under the influence of marijuana. With that said, if an employee requests permission to use marijuana for a medical purpose, you should treat that like any other request for disability accommodation. You may, of course, conclude that the employee’s requested accommodation is unreasonable and deny it, but be sure to take the proper steps to avoid any future liability.
• The Americans with Disabilities Act and Reasonable Accommodations: The ADA does not protect employees who use drugs that are illegal under the CSA. Although there is an exception for drugs used “under supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act,” courts have held that, to fall under the exception, the drug must be legal under the CSA. Thus, marijuana use is not protected by the ADA, and employers have no federal duty to accommodate it.
• State Law and Accommodations: However, a state law may give rise to a duty to accommodate.
  • If a state law requires employers to accommodate medical marijuana users, make sure to follow the rules. For example, in New York and New Jersey, certified users are deemed disabled, and firing an employee for failing a drug test can be considered disability discrimination. Engage in the interactive process, determine whether there are reasonable accommodations, and ensure that no safety hazards will arise.
  • If a state law does not explicitly require employers to accommodate medical marijuana users, you have no duty to accommodate, and private employers may test for it. Courts have held that requiring employers to make such an accommodation would require them to permit federally illegal conduct.

• Drug Testing: In states where marijuana has been legalized recreationally or medically, consider only testing when there is suspicion of use or intoxication on the job, which is unprotected activity. Traces of marijuana may remain even when the employee is no longer under the influence, and taking an action against an employee who is engaged in legal activity outside of work is risky.
• Zero-Tolerance Policies: Some states that have legalized marijuana explicitly prohibit employers from refusing to hire solely because of a positive marijuana test, with exceptions for positions that pose a health and safety risk to others. Others prohibit employers from such discrimination based on medicinal use alone. In states that have adopted no legislation, only federal law applies, providing no employee protection. Look to each state law to find out.

Takeaways

The federal CSA still classifies marijuana as an illegal drug, so only state law provides protections to employees using marijuana. Check the laws of the states where you have employees.

• If the state’s law does not explicitly require employers to accommodate medical marijuana users, you have no duty to accommodate.
• If a state’s law explicitly requires employers to accommodate medical marijuana users, engage in the standard interactive process with the employee.
• Regardless of your state’s law, if an employee requests the ability to use marijuana, either on or off the job, treat the request as a disability accommodation request and engage in the interactive process to avoid future liability.

The state of the law surrounding marijuana use is shifting regularly, so stay up to date.