ALM Properties, Inc.
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What Are They Smoking?
Nationwide, there has been a growing movement to relax state laws prohibiting the possession and use of marijuana. In 1996 California became the first state to legalize the use of marijuana for medicinal purposes. At this writing, 18 states plus the District of Columbia have enacted similar laws. Additionally, a few states have decriminalized recreational use of marijuana, including Colorado and Washington. Yet, marijuana is illegal under the federal Controlled Substances Act. In recognition of conflicting state laws, federal enforcement of the act has been curtailed in states where medical marijuana is authorized. Still, the developing state laws, and their conflict with federal law, raise a host of questions for employers.
Can an employer prohibit marijuana use in the workplace? In every state that permits medicinal or recreational marijuana, employers may lawfully prohibit employees from using marijuana during work hours or on work premises. Moreover, it is clear that in every state, except Connecticut and Hawaii, employers may prohibit employees from possessing marijuana in the workplace, regardless of whether the employee may lawfully possess the drug outside the workplace. (Employers in Connecticut and Hawaii may also have the right to prohibit possession in the workplace, but the statutes in those states are unclear.)
Can an employer prohibit employees from working while under the influence of marijuana? Employers in every state may lawfully prohibit employees from working while under the influence of marijuana and may discipline employees who violate such prohibition. In some states, however, "under the influence" is more narrowly construed for marijuana use than for other controlled substances. For instance, Arizona employers typically may not rely exclusively on a positive drug test for marijuana to conclude that an employee is "under the influence" at work. Instead, Arizona employers may need to establish impairment through external signs and symptoms in combination with drug-test results.
Can an employer refuse to hire a qualified applicant who tests positive for marijuana use in a preemployment drug test? In most states, employers may lawfully refuse to hire an applicant who tests positive for marijuana, even if the marijuana use is legally authorized under state law.
Can employers drug-test employees and take disciplinary action against an employee who tests positive for marijuana? State laws permitting medicinal or recreational marijuana do not prevent employers from drug-testing employees to the extent otherwise permitted by applicable law. Because some state laws restrict employers' ability to drug-test employees under certain circumstances (e.g., random testing is sometimes impermissible), employers should seek legal advice before implementing a drug-testing policy.
In most states, employers may lawfully discipline employees who test positive for marijuana—even where the employee's marijuana use complies with state law. But in some states, such as Arizona and Delaware, employers are prohibited from taking action against registered marijuana users simply on the basis of a positive drug test without additional evidence of impairment at work, except where the employer would lose a federal license or revenue.
Faust is a partner and Gilbreth is an associate in Proskauer Rose's labor and employment law department. Laura Deck, also a member of Proskauer's labor department in Boston, helped prepare this article.