As a growing number of states legalize some form of marijuana use, the legal landscape surrounding this issue has become increasingly hazy. The following article provides a brief summary of laws relating to medical and recreational marijuana use and the implications for employers across the United States.

As a preliminary matter, there is conflict between federal and state law regarding the legality of marijuana for any purpose.

Federal Marijuana Legislation

The Controlled Substances Act (CSA) is the federal statute that governs the manufacture and distribution of certain drugs, including marijuana. The CSA classifies controlled substances into five “schedules” or categories based on a number of factors, including their potential for abuse and accepted medical uses. Schedule I drugs are classified as “hav[ing] no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”

Marijuana is currently classified as a Schedule I drug, alongside such heavy hitters as heroin, LSD and ecstasy, despite studies showing that certain properties of the plant possess extraordinary medical benefits for individuals suffering from medical conditions such as epilepsy. As a result, possession, distribution and cultivation of marijuana are punishable offenses under the CSA.

While the CSA does not specifically address the use of marijuana in the workplace, under the Drug-Free Workplace Act, many federal contractors and federally funded employers are required to maintain a drug-free workplace, which extends to marijuana.

In addition, employees who legally use marijuana under state law are not protected against employment discrimination under the Americans with Disabilities Act (ADA). Therefore, employers may terminate an employee who tests positive for marijuana, regardless of whether the employee is using for medical purposes, without violating the ADA.

Despite marijuana’s status as an illegal substance, two federal legal devices afford, or afforded, some protection for those legally using marijuana pursuant to state law.

First, on Aug. 29, 2013, then-Deputy Attorney General James M. Cole of the Obama administration issued a memo (the Cole Memo) prioritizing certain aspects of enforcement and prosecution of marijuana-related offenses under the CSA. Those priorities included the prevention of sales to minors and the prevention of the transport of marijuana from states where it is legal to states where it is not. The Cole Memo also encouraged redirecting federal resources away from the prosecution of individuals possessing small amounts of marijuana and individuals suffering from serious conditions in states with statutes legalizing limited uses of marijuana.

However, on Jan. 4, 2018, the Cole Memo was rescinded by a memorandum issued by then-Attorney General Jefferson Sessions (the Sessions Memo), which directed federal prosecutors to disregard “previous nationwide guidance specific to marijuana enforcement” and exercise their “prosecutorial discretion in accordance with all applicable laws,” including the CSA. While the Sessions Memo might be at odds with other signals from the White House (as recently as April 2018, President Trump expressed support for allowing states to regulate marijuana within their borders), it remains an official directive to federal prosecutors.

Second, the Rohrabacher-Blumenauer Amendment, which was included in the omnibus FY 2018 spending bill, also provides some federal protection for those possessing, distributing or cultivating marijuana legally under state law in certain states. This legislation prohibits the expenditure of Department of Justice funds for enforcement of the CSA in states with medical marijuana statutes. On Sept. 28, 2018, President Trump signed an $853 billion bill that extended the effects of the Amendment to Dec. 7, 2018.

State Marijuana Legislation

Thirty states and the District of Columbia have legalized medical marijuana within their borders, and nine states and the District of Columbia have legalized recreational marijuana. Nonetheless, many of these states do not protect employees from employment discrimination or disciplinary action for marijuana use while off duty or for testing positive for marijuana. Some federal courts have also held that employers are not required to accommodate employees’ use of medical marijuana under state law.

Conversely, some states, such as New York, have gone to great lengths to afford certified medical marijuana users workplace protections. Not only does New York shield certified medical marijuana users from criminal and civil penalties under state law, its Compassionate Care Act prohibits employers, or occupational or professional licensing boards or bureaus, from taking disciplinary action against a certified user solely for using or manufacturing marijuana in accordance with state law.

Moreover, certified users are classified as having a disability under the New York State Human Rights Law. Thus, New York State employers with four or more employees are prohibited from firing, not hiring or taking adverse employment actions against an individual solely because of that person’s certified medical marijuana use.

That said, no state goes as far as to require employers to tolerate on-the-job marijuana use or an employee performing his or her duties while under the influence.

More on Marijuana in New York

As noted above, New York State extends significant protections to medical marijuana users with respect to employment. For example, the New York State Workers’ Compensation Board (the Board) has issued several decisions asserting its authority to compel workers’ compensation carriers to pay for qualifying employees’ medical marijuana treatment under Workers’ Compensation Law § 13. In one decision, the Board noted that the Compassionate Care Act was “valid and applicable law,” and distinguished between Public Health Law § 3368(2), which does not require an insurer to provide coverage for medical marijuana, and “workers’ compensation carriers” under Workers’ Compensation Law § 13.

The Board has also cited the Rohrabacher-Blumenauer Amendment for the proposition that “current federal law provides that persons or entities operating within the confines of a state’s legalized medical marijuana program will not be federally prosecuted.”

Furthermore, with New York State on its way to legalizing recreational marijuana, more changes are on the horizon with respect to marijuana in the workplace.

What Does All of This Mean for You?

Know what kind of marijuana use, if any, is legal in each of the states your company does business. If medical marijuana is legal in the state, consider revising your company drug policy in accordance with applicable law. For example, in states where medical marijuana users are protected by law, be sure that any zero-tolerance policy is revised to ensure compliance and mitigate related liability.

If recreational marijuana use is legal in the state, find out if the applicable statute protects employees’ out-of-work use and consider revising your company drug policy accordingly.

When and if an employee tests positive for marijuana, consult with legal counsel before taking any disciplinary action. To date, no state or federal law prevents employers from drug testing employees or inquiring as to whether an employee who has tested positive is using marijuana under a doctor’s supervision in accordance with state law.

For employers who would prefer to maintain a zero-tolerance policy in states that permit them to do so, keep in mind that, depending on how widespread marijuana use is in your area, you may experience issues finding and retaining qualified employees.