On Tuesday, November 8, 2016, nine states will have marijuana-related measures on their ballots—five states will consider whether to legalize marijuana for recreational use and four states will vote on whether to allow medical marijuana. Given these impending state law changes, the legalization of medical and recreational marijuana has become a pressing issue on employers’ minds.

California

The Control, Regulate and Tax Adult Use of Marijuana Act, also known as Proposition 64, will be on the 2016 general election ballot in California. If passed, the act would legalize recreational marijuana for individuals over the age of 21, allowing them to possess, transport, and purchase up to an ounce of marijuana as well as grow up to six plants for recreational use. Proposition 64 states that it would “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.”

California employers are not strangers to marijuana laws; the Compassionate Care Act of 1996 allows the use of medical marijuana, and a senate bill decriminalized possession of one ounce or less in 2010. Recent polls show that the ballot measure is likely to pass.

Nevada

Question 2 on the Nevada ballot, the Regulation and Taxation of Marijuana Act, would legalize the possession, use, and cultivation of one ounce or less of recreational marijuana by individuals who have reached the age of 21. The measure notes that it does not prohibit an employer from “maintaining, enacting, or enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under … this act.” Recent polls indicate that Question 2 is likely to pass.

The biggest impact from the passage of Nevada’s recreational marijuana initiative is likely to be its effect on the tourism industry. In 2015, over 42 million tourists visited the city of Las Vegas. Like casinos and nightclubs, recreational marijuana dispensaries may be another draw to the area. However, the Nevada Resort Association, which represents the gaming and resort industry, strongly opposes the measure because marijuana remains illegal under federal law and thus could open casinos to federal prosecution or cause them to lose their state gambling licenses.

Arizona

Proposition 205—the Regulation and Taxation of Marijuana Act—would allow adults 21 years of age and older to possess up to one ounce of marijuana and to privately consume and grow up to six marijuana plants at the individual’s residence. Arizona currently has one of the most employee-friendly medical marijuana acts in the country, which prohibits discrimination against employees and applicants based on their use of medical marijuana. Proposition 205 does not contain an anti-discrimination provision and states that it does not require employers to allow or accommodate marijuana use or possession at work and does not prevent employers from “enacting and enforcing workplace policies restricting the consumption or marijuana and marijuana products.”

Massachusetts 

The Regulation and Taxation of Marijuana Act (Question 4 on the Massachusetts ballot), would allow individuals who are at least 21 years old to grow, use, and possess the substance. Individuals could possess up to 10 ounces of marijuana (plus any marijuana produced by plants cultivated on the premises) in the home and one ounce in public.

Massachusetts’s measure includes a provision assuring employers that it does not require them to “permit or accommodate conduct otherwise allowed by [the act] in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”

Polls predict that the measure will pass. 

Maine

Maine also has recreational marijuana on its general election ballot this year. The Marijuana Legalization Act (Question 1 on the ballot) would allow individuals over the age of 21 to possess, transport, and use up to 2.5 ounces of marijuana as well as possess, grow, cultivate, process, or transport up to six marijuana plants.

The act’s text does not “require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace.” Nor does the act affect the ability of employers to “enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.” The measure contains an anti-discrimination provision prohibiting employers from refusing to employ “or otherwise penalize a person 21 years of age or older solely” because that person consumed marijuana outside the employer’s property.

Montana

Passage of Montana’s Initiative 182 would amend the Montana Marijuana Act, rebranding it as the Montana Medical Marijuana Act. Currently, medical marijuana is legal in Montana, but providers are limited to three patients and prescribing physicians are subject to state review if they prescribe marijuana to more than 25 individuals per year. The 2016 initiative aims to eliminate these restrictions; the initiative would repeal the three-patient limit for providers and state review of physicians who prescribe marijuana to numerous patients. It would also expand the range of conditions for which marijuana can be prescribed to include chronic pain and post-traumatic stress disorder.

The initiative states that “[n]othing in this part may be construed to require … an employer to accommodate the use of marijuana by a registered cardholder … [or] (a) prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or (b) permit a cause of action against an employer for wrongful discharge.”

According to recent polls, a majority of Montana voters oppose the medical marijuana expansion proposed by Initiative 182.

North Dakota

Measure 5 on the North Dakota ballot—the North Dakota Compassionate Care Act—provides for the use of medical marijuana for certain serious medical conditions, including cancer, Lou Gehrig’s disease, epilepsy, Crohn’s, and spinal stenosis. It would also require medical marijuana patients and caregivers to carry identification cards and certificates of registration. 

Arkansas

Issue 6 on the Arkansas ballot, the Arkansas Medical Marijuana Amendment of 2016, will ask voters whether to legalize marijuana for medical use by individuals with qualifying medical conditions. The law specifically enumerates 17 qualifying medical conditions and provides that the Department of Health will be responsible for adding to the list of qualifying medical conditions. Issue 6 contains a nondiscrimination provision that prohibits employers from discriminating against an individual solely based on the individual’s status as a qualifying patient or designated caregiver. However, the proposed amendment does not require an employer to accommodate the ingestion of marijuana in the workplace or an employee working while under the influence of marijuana.

Florida

Florida’s Amendment 2 would allow for medical use of marijuana by individuals with debilitating medical conditions, and expands upon the state’s current, and more limited, medical marijuana program. Currently, Florida permits limited use of non-smokable, low-tetrahydrocannabinol (THC) marijuana for patients suffering from cancer or those with chronic seizures or persistent muscle spasms. The constitutional amendment permits the use of a stronger form of marijuana and enumerates several additional debilitating health conditions. It also allows medical marijuana use for individuals with “other debilitating medical conditions of the same kind or class as or comparable to those enumerated.” According to Amendment 2, employers are not required to accommodate any “on-site medical use of marijuana in any … place of … employment.”

Impact on Employers

Employers’ concerns—many of which involve workplace safety and productivity issues—are not unfounded when it comes to medical and recreational marijuana use. Thus far, state laws have not prohibited employers from enforcing rules regarding the consumption, influence, or possession of marijuana in the workplace. Likewise, they have not been prevented from enforcing workplace rules regarding recreational marijuana. In fact, in the landmark decision Coats v. Dish Network, the Colorado Supreme Court found that the state’s lawful off-duty conduct statute does not prohibit employers from discharging an employee for his or her off-duty medical marijuana use—even if the employee was not impaired at work and his or her drug use did not affect the workplace. Even in states that have enacted medical marijuana laws prohibiting discrimination against employees, employers may discipline employees for being under the influence of marijuana at work.

Employers may want to take a close look at, and possibly revise, their safety initiatives, drug testing policies, and drug and alcohol policies in light of these ballot measures. A best practice is to provide clear guidance to employees on expectations and prohibitions related to the use of marijuana. Companies with multistate operations should stay abreast of the different state marijuana laws and confirm that their policies comply with the laws of the states in which they operate.

Additionally, employers in states with medical marijuana measures on the ballot may want to consider their obligations towards their disabled employees who are using legal medical marijuana. Federal and state law prohibits employers from discriminating against individuals with disabilities—which may include disabled employees who are treated with marijuana. While the use of prescribed medical marijuana is not protected under the ADA, the underlying condition for which the employee is using medical marijuana may be considered a disability requiring a reasonable accommodation under the ADA or similar state laws. Thus, employers must also evaluate their obligations under the ADA and state discrimination laws before taking any action against medical marijuana users.