Retail employers may find themselves dazed and confused by the cloud of legislation legalizing marijuana. This November, Colorado and Washington voters passed measures to legalize marijuana for recreational use by adults. Furthermore, Massachusetts joined 17 other states and the District of Columbia by passing a medical marijuana law of its own. (Other states with some form of medical marijuana law on the books are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington.) Voters in Oregon and Arkansas, on the other hand, rejected similar measures on Election Day.  

Colorado’s Amendment 64 permits the personal use and cultivation of marijuana by adults at least 21 of age, though public consumption and unlicensed sales in the state remain illegal. Amendment 64 provides, “[n]othing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” Accordingly, employers may continue to enforce otherwise lawful drug-testing policies against employees and applicants who test positive for marijuana, to publish and enforce policies prohibiting the possession or consumption of marijuana during working hours, and to discipline employees whose job performance is impaired due to marijuana use.  

Washington’s Initiative 502 allows individuals at least 21 years old to purchase and possess lawfully up to one ounce of useable marijuana, or larger amounts of marijuana- infused products, at licensed retail outlets that have been approved by Washington’s state liquor control board. The new law does not contain any express employment protections for marijuana users. The Washington Supreme Court previously held that the state’s Medical Use of Marijuana Act of 1998 (MUMA) does not prohibit an employer from discharging an employee for failing a required drug test and does not impose a duty to accommodate an employee’s medical marijuana use. It remains to be seen whether courts will apply the same reasoning in cases following implementation of Initiative 502.  

While possession of marijuana is not a criminal or civil offense under the new state laws, marijuana possession remains unlawful under the federal Controlled Substances Act. It is unclear how federal officials will react to this conflict with state law. Although the Obama Administration has opposed such legalization in the past, it has so far declined official comment on the initiatives passed on the November ballot. But with federal law on their side, employers may forbid their employees from using marijuana at work or from showing up to work with the drug in their system. To date, each court to address the issue has ruled that, as long as federal law prohibits the use of marijuana, the states cannot require employers to accommodate its use.  

Retail employers should anticipate increasing issues related to marijuana use by applicants and employees, who may believe state regulations preclude adverse employment action related to marijuana use. Employers should be prepared to communicate how the changing legal landscape impacts existing policies, if at all. Consider whether your workplace policies clearly express your position and your human resources personnel are prepared to handle marijuana-related issues when they arise. It may be necessary to include policy provisions prohibiting employees from using or being under the influence of even lawful substances, including alcohol, prescription drugs or marijuana. The policies must be consistent with applicable federal and state laws prohibiting disability discrimination and regulating drug testing. In addition, unionized employers should consider possible associated collective bargaining obligations.

The full effect of the new laws on the workplace remains to be seen.