Both legal and illegal opioids have had a huge effect on the American labor force. Now another drug is causing confusion for workers, law enforcement, and hiring managers across the country: recreational marijuana.
Legal Marijuana In The U.S.
Public opinion about marijuana has changed drastically in recent decades. In 1937, the Marijuana Tax Act prohibited the use of cannabis at a federal level.
Then in 1973, big changes began to roll out. In that year, Oregon decriminalized cannabis. Throughout 1970, other states began to follow suit – either decriminalizing the drug or allowing the possession of small amounts.
In 1996, California became the first state to legalize medical cannabis.
Now in January 2018, California has became the latest state to legalize marijuana for recreational use. Other states where voters have legalized the drug for recreational use are: Alaska, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington state.
In the states where recreational marijuana is legal, what rights do employers have?
California lawmakers clearly had this concern in mind when they wrote the new law allowing recreational marijuana. Because the law is clear: Employers in CA can still keep marijuana out of their workplaces.
The law specifically states that it doesn’t require public or private employers to allow or accommodate marijuana’s use, consumption, possession, growth, sale, transfer or display in the workplace.
But medical marijuana further complicates this issue.
The recent change in California law aside, many states still outright ban marijuana use for any reason, recreational or otherwise.
But many states do permit marijuana use for medical reasons. They are:
- New Hampshire
- New Jersey
- New Mexico
- North Dakota
- Rhode Island
- West Virginia
But if medical marijuana is legal in so many states, how much power do employers have to stop their employees from using the drug? And what if the worker has a prescription?
One 2017 Massachusetts court case took up that very question.
In that case, a registered medical marijuana user was fired after testing positive for the drug. In response she filed a disability discrimination claim against her employer in state court.
The result? The Massachusetts Supreme Judicial Court eventually ruled that marijuana used for medicinal purposes is just as lawful as the use of other prescribed medications.
Under Massachusetts’ disability discrimination law, employees have the right to seek a reasonable accommodation. The court found that this requirement extends to medical marijuana users, too.
Specifically, the court ruled that if a worker taking their prescribed medication can still perform their essential job functions without impairment, and while also remaining ready, able, and willing to work, then an employer must provide that employee with a “reasonable accommodation.”
As marijuana use is increasingly decriminalized in the U.S., the Massachusetts ruling is bound to have far-reaching effects in other states.
State Laws Still Conflict With Federal Law
While many states are decriminalizing marijuana for medicinal or recreational use (or both), the federal government is stepping up enforcement of its own drug laws.
Under President Obama, the government’s stance on enforcing federal marijuana laws was a fairly lenient one.
But not long after California legalized recreational marijuana this month, the Department of Justice announced that it will reverse this trend and vigorously enforce federal anti-drug laws.
“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law,” said Attorney General Jeff Sessions in a statement. He also pointed to federal laws that “reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”
So unfortunately for hiring managers, firing a worker for marijuana seems to be an acceptable practice under federal law, but out-of-step with many state laws. And as voters and state lawmakers increasingly change their minds about a blanket prohibition of the drug, the confusion is only going to get worse in the near future.
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