As more states legalize medical marijuana, employers should evaluate employment policies that outright ban the use of marijuana.

Currently, 33 states have passed laws approving the use of medical marijuana. Within Phelps Dunbar’s geographic footprint, the states of Louisiana, Florida, Texas, and North Carolina have adopted medical marijuana programs. For now, all marijuana usage, including for medical purposes, remains illegal in both Mississippi and Alabama. However, employers in these states should not sit idle because medical marijuana might be legal in both states soon. In 2020, the state of Mississippi will be voting on the legalization of medical marijuana via ballot Initiative Measure No. 63. In Alabama, the state legislature set up the Alabama Medical Cannabis Commission which has been charged with examining the laws and regulations of the federal government and other states regarding medical marijuana and considering the potential impacts of legalization. The commission is supposed to report its finding to the Alabama legislature by Dec. 1. Based on national trends, medical marijuana might be legalized in both Mississippi and Alabama sooner rather than later.

Under federal law, marijuana remains an illegal Schedule I drug under the Controlled Substances Act. As a result, employment policies that prohibit the use of marijuana both at home and in the workplace do not run afoul of federal law. Furthermore, courts have found that the Americans with Disabilities Act (ADA) does not protect individuals who use marijuana for medical purposes because marijuana is illegal federally. Thus, under federal law, an employer may make hiring or firing decisions based on an individual’s marijuana usage.

Unlike federal law, some states have specifically passed laws prohibiting discrimination against employees who legally use medical marijuana, and some state courts have found that medical marijuana users are entitled to protection. In 2017, Massachusetts courts found that an employer owed its employee an obligation to participate in the interactive process before it terminated her for medical marijuana usage. However, Florida’s medical marijuana law specifies that it does not limit the ability of an employer to establish, continue or enforce a drug-free workplace program or policy, and that employers are not required to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. Florida law further provides that the state’s medical marijuana law does not create a cause of action against an employer for wrongful discharge or termination. The laws in Louisiana, Texas and North Carolina are silent on medical marijuana’s impact on employer-employee relations.

Due to the uncertain state of the law, employers should consider whether an outright ban on marijuana in their policies might be modified to account for the changes. One potential option is to treat medical marijuana like any other prescription medication and to alter policies that provide a blanket prohibition on marijuana use. Such changes would need to account for the state laws in the states where the employer operates, and consider whether the employer wants to test for marijuana, and how it may want to handle positive tests for marijuana, which could differ based on what type of job is at issue (e.g., federal contractors and transportation workers subject to DOTD regulations).

The law on allowance of medical and even recreational use of marijuana is continuing to evolve, and some employers have been challenged in court when relying on their policies that were compliant in the past. Employers seeking to stay ahead of the trend should take a look at their policies and consider whether an update is necessary and consult with legal counsel before implementing such changes.