Marijuana legalization in many states has created new challenges for employers. Legalization continues to generate multi-faceted concerns due to its impact on current employer policies and procedures. When addressing specific issues, it is important to understand the current status of the many laws surrounding cannabis products.
Under federal law, marijuana is classified as a Schedule I substance via the Controlled Substances Act (CSA). This means that marijuana in any form, used for any potential purpose, is illegal under federal law. In addition, the Food, Drug and Cosmetic Act (FDCA) prohibits the use, dispensing, and licensing of marijuana that has not been approved by the federal Food and Drug Administration (FDA).
Over the course of the last decade, states have increasingly passed legislation legalizing marijuana products for various purposes. States generally fall into four categories:
- No usage: There are currently 4 states who do not allow public access to cannabis products. These states are aligned with federal law in terms of not allowing the legal usage of marijuana-related products.
- CBD-only: 13 states allow only very limited uses of a substance called cannabidiol (CBD). CBD is a derivative of marijuana that does not produce psychoactive effects in users and is usually administered in oil form. These states have not legalized the use of marijuana plants for any purpose and generally allow CBD use only for the treatment of one or more specified medical conditions, such as epilepsy in children.
- Medical-only: Currently, 22 states allow the use of marijuana products for medicinal purposes, but do not allow for any recreational use. In these cases, a patient needs to obtain a referral from a medical practitioner to purchase product from a state-licensed outlet. Of the status categories, states with medical marijuana laws generally underlie most cannabis-related employment disputes.
- Recreational and medical: 11 states and the District of Columbia allow individuals aged 21 or older to use marijuana plants for recreational purposes. Each of these states also has a separate law governing the use of marijuana for medical purposes.
At least two state supreme courts (California and Colorado) have held that, because all marijuana use is illegal under the CSA, federal law protects employers from lawsuits for taking an adverse employment action against an individual based on his or her marijuana use that is legal under state law.
However, other courts have held that federal laws do not protect employers from lawsuits for adverse employment actions based on legalized, off-duty marijuana use.
It is important to note that state courts are not bound by rulings from other states. However, employers in states with some form of legalized marijuana laws should be wary of relying solely on federal law to justify adverse employment actions against individuals who test positive for marijuana.
Like any evolving legal situation, this is a complex issue for employers. Because federal law contradicts with various state laws, organizations will have to work to find a unique solution to this issue that fits their business model. Employers are best served considering their work culture and legal circumstances while partnering with legal counsel to determine their workplace policies and procedures.