Five jurisdictions have laws purporting to legalize recreational marijuana use: Alaska, Colorado, the District of Columbia, Oregon and Washington, with more states considering such legislation. Does legalization negate employers’ zero tolerance substance abuse policies and disciplinary rights following a positive marijuana test result on a workplace test? No, and any answer to the contrary is misleading. Can these laws confuse employees and cloud their understanding of their rights? Yes, without clearly defined policy language, employee communications and supervisory training.
Marijuana is still illegal under federal law, but in light of these new state recreational marijuana laws, employers must clearly communicate to employees that their workplace substance abuse and testing policies have not changed and still apply to marijuana use.
Federal law criminalizes marijuana, and employment laws do not protect recreational marijuana use
Marijuana continues to be illegal under federal law, and the U.S. Supreme Court has upheld prosecution even of medicinal marijuana users. As state authority to declare even medical marijuana use lawful is suspect, it is even more unlikely state authority would extend to prohibit discipline for lawful, off-duty conduct that remains federally illegal. Additionally, Drug-Free Workplace Act contractors are prohibited from allowing workplace use/possession, and U.S. Department of Transportation (DOT) employers may not accept recreational marijuana use as a valid excuse for a positive test result on a DOT drug test.
Courts that have thus far considered whether employers must tolerate medical marijuana use that is “lawful” under state law have sided with employers taking adverse action where the same conduct is considered criminal as a matter of federal law. Further, current illegal drug use for recreational purposes is not protected under any federal or state disability or leave laws or arguably under any employment laws at all, although just cause is always a consideration in a union environment. Significantly for employers, none of the recreational marijuana laws that have been passed provide employment protection from termination of employment due to marijuana use.
Recreational marijuana laws either specifically protect employers or establish no restrictions on employer action
Alaska, Colorado and the District of Columbia have recreational marijuana laws providing express protection for employers. The laws in all three jurisdictions clearly indicate employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace, and that they are not intended to affect the ability of employers to have policies restricting the use of marijuana by employees. Driving under the influence of marijuana is specifically prohibited in Alaska and Colorado, and the recreational marijuana laws in those states specifically allow employers to regulate on-premises use and possession of marijuana. Given these express protections, Alaska, Colorado and D.C. employers can continue to manage workplace substance abuse/testing issues as in the past without concern regarding legal compliance issues under the recreational marijuana laws in those states, although Colorado employers should consider a minor twist, discussed below, based on that state’s off-duty conduct statute.
The laws in Oregon and Washington are virtually silent on the employment relationship. Oregon’s law indicates it is not to be construed to amend/affect laws “pertaining to employment.” Washington’s recreational marijuana law says nothing about employment. Court decisions in those states construing the state medical marijuana laws have held that employers need not accommodate medical marijuana use because those laws are decriminalization statutes only. Accordingly, those states may offer employees even less protection for employer action on the basis of recreational marijuana use.