A recent wave of state laws legalizing medical or recreational marijuana use has created a new compliance quandary for employers in these states, who don’t always know whether their own drug policies are compliant with state law. While marijuana remains outlawed at the federal level, its legalization in 30 states plus Washington DC means many employers are unsure of what they can and can’t do to police employees’ use of marijuana, such as whether medical users are protected under the Americans with Disabilities Act or how marijuana use affects employees’ eligibility for workers’ compensation.
Now, some business associations are urging the Trump administration to issue some guidance or rules to clarify how employers should handle this sticky situation, the Washington Examiner reports:
“We’d like to see [the Department of Labor] issue something just for clarity’s sake,” said a source for one major Washington trade association speaking on background, adding that they aren’t pushing for any particular direction. They just want the administration to say where the lines are drawn.
Asked if they were mulling any rulemaking or other guidance, a Labor Department spokesman referred all questions to the Justice Department, which declined to comment. But another Justice Department source who wasn’t authorized to speak for the record told the Washington Examiner that “rumblings” were heard inside the department that the administration was looking into the issue.
Attorney General Jeff Sessions is an outspoken critic of the drive to decriminalize and legalize marijuana. In January, Sessions rescinded policies put in place by the Obama administration under which the Justice Department would not seek to prosecute marijuana users or dispensaries in states where the drug has been legalized, though the memo announcing that policy shift did not give much detail as to what it meant in terms of the department’s enforcement priorities.
Most of the states that have legalized marijuana still allow employers to maintain drug-free workplaces and to reject candidates or fire employees for testing positive for the drug. Only Maine’s marijuana law, which legalized recreational use effective February 1, contains an explicit provision protecting employees from adverse action as long as their use of marijuana takes place outside working hours and off their employer’s property.
Because these laws are so new, few courts have weighed the employment rights of marijuana users in these states. Judges in Massachusetts and Rhode Island have ruled that employers cannot use blanket anti-marijuana policies as a basis for firing employees who use the drug medicinally, but there is still little case law to draw on here, while the conflict between state and federal law complicates matters considerably.