Over half the states in the U.S. now have comprehensive medical marijuana laws, and with the proliferation of such laws has come a shift in how courts view workplace drug policies. That means employers may want to update their approach.

Here are some key points for employers, as identified by a panel of attorneys at the recent 11th Annual American Bar Association Labor and Employment Law Conference:

1. All Marijuana Use Is Still Illegal Under Federal Law. Marijuana remains a Schedule I controlled substance under federal law, meaning that it is considered to have no medical benefits. As a practical matter, this means that there is no such thing as a prescription for medical marijuana. Doctors can work around this by recommending its use for medical reasons in states where its use is legal.

Currently, 29 states and Washington, D.C. have legalized medical marijuana use of which eight states have also approved recreational use. Some earlier laws explicitly stated that users did not have employment protections, but some of the newer state laws have made things more complicated by providing employment protections to medical marijuana users under state disability laws.

Of note, no state law provides employment protections for recreational use—at least not yet.

2. The Tide Is Turning
. Historically, employees who were fired for off-duty medical marijuana use have lost lawsuits where they challenged their employer’s decision. For example, in 2015, the Colorado Supreme Court found that even though a worker was permitted to use medical marijuana under state law, his termination was justified because marijuana is still illegal under federal law.

Recent judicial decisions, however, signal a shift in the way courts are approaching medicinal use. In May, a Rhode Island court sided with a job candidate who was passed over because she disclosed to her potential employer that she was a medical marijuana cardholder and would fail a pre-employment drug test. The court said the employer couldn’t refuse to hire her because of her status as a medical marijuana cardholder.

In July, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim. The employer in that case claimed that all marijuana use is a federal crime, and therefore, an accommodation for such use is unreasonable. But the court disagreed and held that, under the state’s disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use.

The employer in that case didn’t argue federal pre-emption, but in August 2017, a federal district court in Connecticut rejected an employer’s federal pre-emption argument. The court said that the federal Controlled Substances Act doesn’t regulate employment and therefore didn’t make it illegal to employ a marijuana user.

3. Testing Is Lacking. Legislative efforts at the state level may not change the implications of medical marijuana use in safety-sensitive industries or those that require drug testing under federal law.

Unlike for alcohol, there is not a widely accepted method of testing marijuana impairment, and as such, existing testing methods may be unreliable. Because it is difficult to detect impairment, arbitrators usually look at other types of evidence in the workplace, such as accidents and poor performance.

4. On-the-Job Use Is Not Allowed. Employers may want to review their drug-testing policies and consider their reasons for testing. In light of recent court decisions finding that registered medical marijuana users are protected under state disability laws, employers should also understand the importance of engaging in an interactive process and reviewing reasonable accommodation requests.

As we continue to see rapidly changing adoption to recreational and medical marijuana use laws in states and municipalities, it does require continuous monitoring of the laws by all employers. As well, it is important to ensure you are compliant for both legal reasons as well as employee relations with your workers.

Hedley Lawson, Contributing Editor
Managing Partner
Aligned Growth Partners, LLC
(707) 217-0979