ILMA Compoundings - April 2021 - 34

COUNSEL COMPOUND

Weed and the Workplace
By Jeff Leiter

T

he evolving patchwork of state
laws allowing medical marijuana
and decriminalizing small-scale
recreational use of cannabis has created
questions for employers, particularly
those that operate in multiple jurisdictions, as to how to address marijuana
usage by employees. As of March 1,
36 states and Washington, D.C., have
enacted medical marijuana programs,
while 15 states and Washington, D.C.,
have approved measures to decriminalize the recreational use of cannabis by
adults. You can find the status of these
state marijuana laws at www.ncsl.org/
research/health/state-medical-marijuana-laws.aspx.
At the same time, the National
Safety Council says that the THC
(tetrahydrocannabinol) in marijuana
affects depth perception, reaction
time, coordination and other motor
skills, and it creates sensory distortion.
A study reported by the National
Institute on Drug Abuse found
that workers who tested positive for
marijuana had 55% more industrial
accidents, 85% more injuries and
75% greater absenteeism compared to
those who tested negative.
With this background, let me try to
address the extent to which employers
must accommodate employees who
are prescribed marijuana for medical
purposes and whether they may
prohibit employee off-premises or
off-duty cannabis use. Knowing your
state laws as they relate to medical and
recreational use of marijuana when it
comes to hiring, drug testing (whether
pre-employment, for reasonable suspicion or random), drug-free workplace
policies and other employment issues

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APRIL 2021

| COMPOUNDINGS | ILMA.ORG

is important. As always, seek the
advice of local counsel.
MARIJUANA AT THE
FEDERAL LEVEL
At the federal level, marijuana remains
a Schedule I controlled substance
under the Controlled Substances Act
(CSA), so with limited exceptions, its
manufacture, distribution and possession remains a federal crime (the 2018
Farm Bill, however, removed hemp
and its derivatives from prohibition
under the CSA, so hemp and hempbased cannabidiol (CBD) is no longer
illegal to use or possess). While the
U.S. Supreme Court held in 2005 that
the CSA takes precedence over state
laws legalizing medical marijuana,
federal marijuana enforcement since
that time has been inconsistent.
The Obama administration
instructed federal law enforcement
agencies and prosecutors to focus
on preventing marijuana revenue
from going to criminal enterprises
and cartels, while recommending
that state and local law enforcement
be the primary means of addressing

localized, small-scale marijuana use by
individuals, particularly in states where
marijuana use is legal to some extent.
The Trump administration withdrew
this guidance, telling federal prosecutors instead to use " the well-established
principles that govern all federal
prosecutions. " Nonetheless, federal
marijuana prosecutions have continued
to decline since peaking in 2012.
EMPLOYEE MEDICAL
MARIJUANA USE
Let me first turn to whether employers
may discipline employees for using
medical marijuana. It depends. Two
federal laws - the Americans with
Disabilities Act (ADA) and Rehabilitation Act - exclude from coverage
employees or applicants " engaging
in the illegal use of drugs. " Further,
none of the states that have legalized
medical or recreational marijuana use
require employers to permit employees to use or consume cannabis in the
workplace or during work time. Most
of these jurisdictions allow employers
to take disciplinary action against an
employee who is under the influence
http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx http://www.ILMA.ORG
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