As of this writing, twenty states and the District of Columbia have enacted laws legalizing the use of medical marijuana. What’s more, states like Washington and Colorado have gone as far as legalizing marijuana entirely (for both medical and recreational use). Following the Attorney General’s recent announcement that the Department of Justice will let Washington and Colorado Marijuana Laws go into effect, and with public support for marijuana legalization at an all-time high (more than 50% of U.S. voters are now in favor), states such as Alaska, Arizona, California, Nevada, Oregon, Maine, Massachusetts, Montana, Rhode Island and Vermont are expected to follow suit and pass their own marijuana legalization laws.
Marijuana and the Workplace: The Implications of Legalization in the Workplace
The trend towards marijuana legalization raises some very important workplace questions. Perhaps one of the most pertinent questions is whether a drug-free workplace is still legal in states like Colorado and Washington that have legalized marijuana use entirely. Although no court has yet to address this precise issue, courts in numerous states have unanimously ruled that laws legalizing medical marijuana use do not invalidate employers’ drug-free workplace policies, and the fact that an employee has a medical marijuana card does not mean that the employee is exempt from the employers’ drug-free policies. Indeed, courts have gone as far to say that employers are not required under the Americans with Disabilities Act (or any other federal law, for that matter) to accommodate their employees’ use of medical marijuana.
The primary rationale behind these courts’ decisions (besides the fact that possession of marijuana remains illegal under federal law) has been that state laws legalizing medical marijuana are limited in their scope. In other words, while the various state medical marijuana laws protect medical marijuana cardholders from criminal penalties for possessing or using marijuana for permissible medicinal purposes, they generally do not provide protection against adverse employment decisions related to that use or possession. Similar holdings may be expected in the states that have legalized recreational marijuana.
In Colorado, for instance, the amendment to the state constitution which legalizes recreational use of marijuana explicitly provides that “nothing in this Section is intended to require an employer to accommodate the use, consumption, possession, transfer, display, sale, or growing of marijuana or to affect employers who have policies restricting the use of marijuana by employees. Nothing in this Section shall prohibit [an] employer or any other entity who occupies, owns or controls a property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property.”
While recent challenges to drug-free policies based on Colorado’s Lawful Off Duty Activities Statute have so far been defeated on the grounds that marijuana remains illegal under federal law, the recent passage of Amendment 64 may bring new force to this argument; at the very least, more persons may argue they are entitled to protection under the law in light of their off-duty, off-premises marijuana use.
Although Washington’s marijuana legalization law does not contain a similar restriction with respect to marijuana in the workplace like Colorado, neither does it change the right of employers in the state of Washington to test employees for drug use. There isn’t as much law on the books about what employers can and can’t (or should and shouldn’t) require of their employees in Washington State. But that doesn’t mean it isn’t still a murky issue—some employers who don’t have any potential public safety issues stop doing random drug testing at all, deciding that they’d rather not know if it meant having to fire someone over legal use of a drug.
In the end, however, whether drug-free workplaces will remain legal in states such as Washington and Colorado remains to be seen.
This article was written together with Robert Tritter, an aspiring lawyer who hopes to help you understand the law better. He writes this on behalf of the NOVA Medical Centers, your number one choice when looking for Pre-Employment Drug Testing services. Check out their website today and see how they can help you and your business!