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