As of January 1, 2017 there will be more states that will have legalized marijuana for both medical and recreational use.
There are currently twenty-six states and Washington, D.C. that currently have laws legalizing marijuana in some fashion. In the near future three additional states will join them after recently passing bills permitting the use of medical marijuana.
Additionally, seven states and Washington, D.C. have adopted laws legalizing the recreational use of marijuana. In the November 2016 election, California, Maine, Massachusetts and Nevada all approved propositions to legalize recreational marijuana. Under California’s Proposition 64, the bill permits individuals over the age of 21 to possess up to 1 oz. of marijuana in 2017. Massachusetts and Nevada passed similar provisions.
How these states have enacted these laws varies – some have used amendments to the state constitutions, some have passed legislation, some regulate the “use” of the drug, while some only regulate “possession” or indicate that a person “cannot be prosecuted for use or possession.” What the specific law in the insured’s home state actually says is extremely important to any employee termination decision. Prop 64 regulates both use and possession.
Many states that have passed legislation legalizing marijuana use for medical purposes also expressly provide protections against the termination of employment for use pursuant to a medical recommendation, or specifically state that other protective statutes (like Employment Rights or Civil Rights statutes) apply to bar termination for “use” or “possession” within the law. That said, some of those statutes also allow for termination if an employee uses on the job, or off the job if the use impacts their work or would somehow jeopardize the employer’s business (federal licensing or contracting, etc.). The latter concept is particularly important when we are talking about recreational use – most of the recreational use provisions don’t
provide these types of protections, so in theory, there is even less protections afforded to recreational users than those that use for medicinal purposes.
Marijuana should be viewed as an intoxicant the same way that prescription drugs, over-thecounter drugs and alcohol are viewed. This becomes even more important when employees are engaged in work related activities that if impaired, could result in a workplace injury or significant property damage. Employers should be certain to have policies in place that limit the possibility of such impairment. The following practices have been developed to help guide your company through the process of developing an effective and compliant Workplace Drug & Alcohol Policy.
Quest Diagnostics, which performed nearly 11 million laboratory-based drug tests for employers in 2015, said the percentage of tests coming back positive has shown a modest increase in recent years. Nearly half of all positive tests showed evidence of marijuana use.
The most widely cited case is a 2015 Colorado Supreme Court that upheld Dish Network’s firing of a disabled man who used medical marijuana and failed a drug test. The court ruled that a state law barring employers from firing workers for off-duty behavior that is legal did not apply because pot remains illegal under federal law. Similar rulings have been issued in other states including California, Montana and Washington.