The Rapidly Evolving Marijuana Rules

The landscape regarding marijuana use seems to be changing so rapidly that it is difficult to keep up. More than half of the U.S. has now legalized some form of marijuana use. Currently, 33 states and the District of Columbia permit the use of marijuana for either medical or recreational purposes or both. In 10 states as well as D.C., the use of recreational marijuana is lawful. Today, more than 20 percent of all Americans live in a state where recreational use is legal. As of January 1, 2020, Illinois will be joining the list of states that have legalized cannabis use. Moreover, all the major Democratic presidential candidates except Joe Biden support legalizing marijuana. The presidential election may completely rewrite the law on marijuana in the US.

The Stats on Marijuana
The majority of Americans have accepted the idea that marijuana use should not be penalized. Not surprisingly, almost two-thirds (2/3) of millennials hold that view. A recent study found that more than 22 million people in the U.S. used marijuana within the past month. Despite the increase in legalized marijuana, it is still illegal in many states and, more importantly, under federal law. The federal Controlled Substance Act classifies marijuana as a Schedule 1 drug, along with LSD and heroin. Despite the surveys that confirm declining objection to marijuana use, there is not currently great support for its national legalization. It will likely remain an unlawful controlled substance under Federal law for at least the time being. But the climate is changing.

Marijuana at Work
It is the potential effects of marijuana use, both medical and recreational, on the workplace where the issue causes the greatest concerns. A National Institute of Drug Abuse study found that employees who tested positive for cannabis had 85% more injuries; 55% more industrial incidents; and 75% higher absenteeism rates. Until recently, challenges to employee terminations for testing positive for marijuana were almost always dismissed as proper under employers’ drug-free workplace policies. In some cases, the termination was challenged under state laws that protect personal conduct away from the workplace. The courts consistently ruled that since marijuana was unlawful under federal law, enforcement of a drug-free workplace policy banning its presence was permissible despite the state law.

State Law and Marijuana
While maintaining drug-free workplaces has long been the rule for most American businesses, there has been a rapidly developing trend for states to include explicit employment protections as medical marijuana laws have been adopted or amended. A few states have excluded “safety-sensitive” jobs. For example, state regulations in Massachusetts list almost 300 positions as “safety-sensitive” and exempt from protective statutory legislation. However, currently, 13 states have some form of protective language for medical marijuana use. In fact, as of January 1, 2020, Nevada will become the first state where employers may not deny employment to an applicant that tests positive for marijuana on a pre-employment drug screen. In Massachusetts, the state Supreme Court permitted the state’s disability discrimination law to be used to challenge a termination decision affecting a medical marijuana user. The employee used medical marijuana away from work as part of the treatment for a disabling condition. The legal rationale applied by the Massachusetts court is consistent with the increased workplace protections afforded to disabled employees. The same rationale may soon be utilized by other states. It is especially likely in the three liberal West Coast states, California, Oregon and Washington, that were among the first to legalize marijuana use and have developed a large-scale marijuana industry. Also, the costs attendant to the use of medical marijuana have recently become reimbursable medical expenses under the Workers Compensation rules of Connecticut, Maine, Minnesota, New Jersey, New Hampshire, and New Mexico. This trend is likely to spread to other states that permit the use of medical marijuana.

OSHA and Marijuana
Until early 2019, OSHA had adopted a troubling approach to employer post-accident drug testing under its rules on the reporting of work-related injuries. It interpreted its rules as prohibiting post-accident drug testing as retaliatory and unlawful unless facts indicated that on-the-job drug impairment may have played a role in the accident. A major problem for employers is that there are currently no viable tests to confirm actual impairment by marijuana use. Virtually all current testing procedures test for the presence of marijuana metabolites. Tests for levels to confirm “impairment” are a work in progress. Fortunately, OSHA’s interpretation of its rules on post-accident drug testing was recently rescinded by the Trump Department of Labor. In October 2019 a company from Northern California announced that in 2020 it will begin marketing a hand-held device similar to a breathalyzer that can run tests for both alcohol and marijuana. According to its developers, the device can detect whether someone has smoked marijuana or ingested a marijuana edible within the last three hours.

Drug Testing and Marijuana
While most employers that utilize the drug, testing continue to use post-accident and probable cause drug testing, some, especially in states that permit recreational use of marijuana, is eliminating pre-employment drug screening. The inability to hire that employers in all industries are experiencing has been compounded in some in states that permit recreational use. In some areas, a large number of applicants are unable to pass a drug screen due to marijuana usage. Those employers’ reason that probable cause, or random testing if permitted, will eventually expose the habitual marijuana users. There is, of course, the potential for a claim of negligent hiring if a fellow employee was to be injured by a marijuana-impaired employee. Employers that have eliminated pre-employment drug screening are willing to take that minimal risk.

Conclusion
It is difficult to predict whether the trends to expand the legalization of marijuana and to protect its usage will continue. However, marijuana has grown into big business in several states and generates substantial tax benefits. Other states may soon want to join the party.

Richard D. Alaniz is a partner at Alaniz Law & Associates, a labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over forty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick’s monthly articles, can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-law.com.