According to the Pew Research Center, support for the legalization of marijuana has nearly doubled in the past twenty years—from 31% in 2000 to about 62% in 2018. This is a huge jump in a short amount of time, and employers are likely going to have to re-think how they handle this issue going forward. Currently 33 states have broad legislation in place that allows for the use of marijuana in some form, and 10 of those states have legalized the recreational use of marijuana.
Courts in Colorado, California and Washington have all agreed that disciplining or terminating an employee or applicant who tested positive for marijuana does not violate state law. The courts sided with the employers, arguing that companies should not be forced to hire anyone who violates company policy even if they possessed a prescription for medical use of marijuana.
As the momentum towards nationwide legalization grows, and as states see increased revenue from marijuana sales, the question becomes if and how employers will change and implement new drug policies. Recent decisions in federal and state courts indicate that employers should proceed with caution when making employment decisions concerning drug tests for cannabis use.
Here are three examples of how different states are handling the issue.
Maine Workplace Marijuana Laws
Maine legalized recreational use of marijuana in 2016, but the Maine Marijuana Legalization Act does not require an employer to permit or accommodate the use, consumption, or possession of marijuana in the workplace. The act also does not affect an employer’s ability to enact and enforce workplace policies restricting employees’ use of marijuana.
However, Maine was the first state to explicitly prohibit employers from firing or refusing to hire a person because of off-site recreational marijuana use. As of 2018, employees and applicants aged 21 and over are protected from discrimination if they use marijuana outside of the workplace. Furthermore, if an employer wants to enact a drug testing policy, they must first seek the approval of Maine’s Department of Labor.
Massachusetts Workplace Marijuana Laws
The recreational marijuana law passed by Massachusetts voters took effect on December 15, 2016. Similar to the Maine law, the Massachusetts Regulation and Taxation of Marijuana Act does not require an employer to permit or accommodate marijuana use in the workplace and does not affect an employer’s authority to enact and enforce workplace policies restricting the consumption of marijuana by employees. This means that, just as with alcohol consumption, employers in Massachusetts may set rules about employees’ use of marijuana at work.
The Massachusetts Supreme Judicial Court, in a 2017 decision in Cristina Barbuto vs. Advantage Sales and Marketing, ruled that an employer cannot fire or discriminate against an employee for using medical marijuana. Unlike in Maine, however, the law does not explicitly restrict an employer from taking disciplinary action against an employee for recreational marijuana use outside of work.
New Mexico Workplace Marijuana Laws
In 2016, Rojerio Garcia brought a lawsuit against Tractor Supply Co. for firing him when he tested positive for marijuana. Mr. Garcia, who suffers from HIV/AIDS, believed that his firing violated New Mexico’s Human Rights statute and that the state’s Compassionate Use Act that allows for medical marijuana use required Tractor Supply Co. to accommodate his medicinal use.
According to Verill Dana’s Labor and Employment Law Blog, the court ultimately dismissed Mr. Garcia’s lawsuit, deciding against forcing Tractor Supply Co., a national employer, to alter its policies simply to accommodate New Mexico state law.
Nevertheless, if medical and recreational marijuana use is allowed in states where a company operates, it is perhaps time for the company to examine the core motivation behind their company drug testing policy. Some companies, such as those that do business with the federal government, may be required to test certain employees. Safety-sensitive positions, such as drivers, equipment operators, and pilots, are subject to alcohol and drug screening, as well.
The difficulty for employers is that, unlike alcohol testing, there is no definitive test available for establishing whether someone is under the influence of marijuana at work. Current technology cannot distinguish whether a person is “high” at work or whether that person used marijuana at home on their own personal time.
In any case, the relationship between state laws decriminalizing the use of marijuana and the needs of employers continues to evolve. As laws change, employers will have to remain vigilant and flexible with regards to how they handle the evolving landscape of marijuana legalization.
Itching to learn more about the weird world of cannabis legalization? Here is a handy guide to Understanding Marijuana Laws by State.