With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized marijuana for recreational purposes to some extent. The rules and regulations implementing these changes won’t be finalized and put into effect immediately – for instance, the Florida Department of Health has until July 3, 2017 to promulgate regulations for licensing and distribution and until October 3, 2017 to begin issuing medical marijuana identification cards. Even so, it’s best to analyze the impact of the changing marijuana landscape now and prepare for the future.

The 2016 Election and Marijuana Policy

To be clear, marijuana remains illegal under federal law. As recently as August 2016, the U.S. Drug Enforcement Administration restated that marijuana has no acceptable recreational or medicinal purpose, and should remain a Schedule I substance on the Controlled Substances Act. For perspective, heroin and ecstasy are also classified as Schedule I substances.

President-elect Donald J. Trump did not make marijuana policy a priority during his election campaign, and it’s uncertain how his administration will address this issue. On many other issues, Trump indicates a willingness to defer to states. But, certain of President-elect Trump’s picks, including Senator Jeff Sessions for Attorney General and Rep. Tom Price for Secretary of Department of Health and Human Services, suggest the new administration will be less tolerant of marijuana use. As Attorney General, Senator Sessions could renounce the Cole and Ogden Memos issued under the Obama administration, which, in part, state that the Department of Justice will not interfere with businesses and individuals operating legally under state cannabis laws, as long as organized crime and sales to minors are not implicated. Given Sessions’ comments as a U.S. Attorney in Alabama in the 1980s that he thought the KKK “were OK until I found out they smoked pot,” his criticism of FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing the federal prohibition, and his floor speech last year stating that marijuana “is already causing a disturbance in the states that have made it legal,” a change in federal enforcement may be in store.

Workplace Safety Remains a Priority

Employers continue to be required to provide employees with a safe workplace and should not compromise safety due to an employee’s use of any legal prescription medication, including medical marijuana. Under OSHA regulations, employers can continue to have drug-free workplace policies, and should prohibit the use of or being under the influence of controlled substances while at work. An article in the Journal of Occupational and Environmental Medicine from May 2015 noted that there is a “likely statistical association between illicit drug use (including marijuana) and workplace accidents.” Additionally, the National Institute on Drug Abuse reports that marijuana’s effects on attention, memory, and learning can last for days, or even weeks, after use. Companies with employees who work in the public sector, such as in transportation, or employees who work in safety-sensitive positions, or operate heavy machinery, should be especially cautious of safety concerns.

Can an employer continue to enforce a zero-tolerance drug policy with regards to pre-employment screening and random drug testing?

Particularly in the three states where medical marijuana is newly legal (Florida, Arkansas, and North Dakota), employers are left wondering what to do about pre-employment screening and random drug testing.

Employers in states that explicitly say employers have no duty to accommodate medical marijuana users can probably rely on such language when screening or discharging applicants or employees for marijuana-positive drug tests results. In Florida, for example, Amendment 2 provides that the law shall not “require any accommodation of any on-site medical use of marijuana” in any place of employment. This presumably means that in Florida, an employer may prohibit an employee from using and/or being under the influence of medical marijuana at the workplace. Similarly, in 2015, in Coats v. Dish Network, LLC, the Supreme Court of Colorado affirmed the termination of employment of an employee who tested positive for marijuana despite having used the drug off-duty for a medicinal purpose, because such use violated federal law and the employer’s drug policy.

In some states, the medical marijuana laws expressly prohibit employment discrimination against medical marijuana users. There may be a potential risk of a claim (such as for disability discrimination under a state equivalent of the federal ADA) in these states by individuals who use marijuana for a medical purpose and are subjected to adverse employment actions. Where state law requires employers to make reasonable accommodations for medical marijuana users, or makes it unlawful for an employer to take an adverse action against an applicant or employee based on medical marijuana use, employers there must be particularly cautious and may need to modify screening and testing policies in order to remain compliant with state law.

What about post-accident testing?

How do employers reconcile automatic drug-testing required by workers’ compensation laws with the new state laws legalizing medical marijuana? Can an employer still require employees to undergo post-accident testing?

Generally, federal law permits employers to test for drugs during accident investigations. In 2016, in a final rule and subsequent clarifying Memorandum, OSHA stated it does not prohibit employers from drug testing employees who report work-related injuries and illnesses as long as the employer has an objectively reasonable basis for conducting the testing, i.e., that the employer can show a reasonable basis for believing that drug use could have contributed to the reported injury or illness. OSHA prohibits the use of drug testing by employers as a form of discipline against employees who report workplace related injuries or illnesses.

Conclusion

The trend towards legalizing marijuana, at least for medical purposes, has continued at the state level. It remains to be seen how the courts and federal agencies will interpret and enforce the laws in 2017. The bottom line is that employers who have not yet determined how they will deal with workplace issues relating to marijuana should do soon.