Wednesday morning, the Internet was abuzz with the news that former House Speaker John Boehner had joined the advisory board of Acreage Holdings, a company that grows, processes, and distributes cannabis in states where the drug has been legalized, as had former Massachusetts Governor Bill Weld. The two former politicians, both Republicans, claim never to have tried the drug themselves, but Weld, who was the Libertarian Party candidate for vice president in 2016, has advocated legalizing medical marijuana since the early 1990s. Boehner, by contrast, once said during his time in the House that he was “unalterably opposed” to legalization.
The former congressman attributed his dramatic reversal on the issue to the potential for cannabis as a safer substitute for opioid painkillers, as well as the considerable number of nonviolent drug offenders in the US prison population. Boehner’s change of heart is more than just a quirky political news story, however; it speaks to the rapid pace at which mainstream acceptance of marijuana is growing, even as the drug remains illegal under federal law. Attorney General Jeff Sessions opposes legalization and in January withdrew assurances given by the Obama administration that the Justice Department would not seek to prosecute marijuana users or dispensaries in legal states, but more and more states are moving to decriminalize or legalize the use of marijuana for medical or even recreational purposes.
These changes have major implications for employers, many of whom are unsure how these new laws affect their workplace drug policies, or are beginning to wonder whether rejecting a candidate or firing an employee on the basis of their testing positive for marijuana is actually counterproductive in an uncommonly tight labor market. The latest benchmarking survey from the background-check firm HireRight found that 67 percent of US employers now have policies addressing medical marijuana use, Amy X. Wang reports at Quartz, compared just when 21 percent who said they had such a policy or planned to develop one six years ago.
In that same survey, 22 percent of companies indicated that medical marijuana was among their most significant compliance challenges. The intersection of legalized cannabis and the workplace is a completely new area of law, so employers’ pressing questions have yet to be answered. Mostly, state laws still allow employers to maintain drug-free workplace policies and reject candidates or fire employees for using marijuana, but patients who use the drug medicinally are increasingly being protected against employment discrimination.
Back in February, we looked at how Maine’s marijuana legalization law extended considerable rights to employees who use marijuana off the clock, explicitly protecting them from adverse action based solely on their use of marijuana outside working hours and off the employer’s property. Maine’s Labor Department has issued some guidance to employers on how this law affects them, but it leaves many questions unanswered, Seyfarth Shaw attorney Jennifer Mora notes at the firm’s blog dedicated to marijuana laws. Employers there may continue to prohibit the use of cannabis at work and discipline employees found to be under the influence on the job, but cannot punish them based solely on a positive marijuana test, as that test does not prove when or where the employee used the drug.
Jinouth Vasquez Santos, who also keeps an eye on these laws for Seyfarth Shaw, rounds up the state of employee protection in various states at Lexology. Unusually, California still permits employers to forbid the use of marijuana, medically or otherwise, but Vasquez confidently predicts that this will change soon, noting that legislators there have advanced a bill to designate medical marijuana cardholders as a protected category under the state’s employment discrimination law.
The interplay between federal and state law regarding cannabis is also beginning to play out in the courts, where with few judicial precedents to draw on, judges are making major calls on whether employers in these states can maintain drug-free policies: Courts in Massachusetts and Rhode Island ruled last year, for example, in favor of medical marijuana patients who said their dismissals based on failed drug tests were discriminatory. The pendulum certainly appears to be swinging in that direction, though it is too early for businesses to know exactly how the courts will settle on these issues. That’s why some business associations are now pushing the Trump administration to issue guidelines clarifying.