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. As of 2013, 18 states plus the District of Columbia have enacted similar laws. Additionally, a few states have recently decriminalized recreational use of marijuana, including ballot initiatives in Colorado and Washington that legalized recreational marijuana use.
Despite the legalization of marijuana at the state level, marijuana is still illegal under the federal Controlled Substances Act. In recognition of conflicting state laws, however, federal enforcement of the act has been curtailed in states where medical marijuana is authorized.
The continuously developing state marijuana laws and their conflict with federal law raise a host of questions for employers. This article explores the application of marijuana laws to the workplace and answers common questions posed by employers attempting to navigate these laws.
State Laws
Medicinal Marijuana Laws
Many state laws, including those in Colorado, Hawaii, New Mexico, and Washington, D.C., are silent on their effect upon the workplace. Laws (including case law) in other states, such as Washington, Montana, Oregon, California, and Massachusetts, make clear that employers may prohibit use or possession of marijuana in the workplace, but otherwise are silent on an employers rights and obligations toward medical marijuana users. Laws in several other states, including Arizona, Connecticut, Delaware, Maine, Michigan, and Rhode Island, include provisions explicitly addressing the laws impact on the workplace.
In general, medical marijuana laws that are silent about their impact on the workplace do not impose any restrictions or obligations on employers. Furthermore, courts that have addressed the impact of such laws on the workplace have typically not found restrictions or obligations beyond those expressly set forth in the statute, e.g., Casias v. Wal-Mart (6th Cir. 2012); Roe v. Teletech (Wash. 2011); Johnson v. Columbia Falls Alum. (Mont. 2009); Ross v. RagingWire Telecomms. (Cal. 2008).
Recreational Marijuana Laws
To date, Washington and Colorado are the only states to legalize the recreational use of marijuana by statute. The Alaska Supreme Court has held that residents have a constitutional privacy right to possess, use, and cultivate small amounts of marijuana for personal use in ones home. Ravin v. State (Alaska 1975). The Washington statute is silent about its effect on the workplace, whereas the Colorado statute explicitly permits employers to prohibit marijuana possession and use in the workplace, and to apply drug policies and testing programs to employees who use marijuana. Informal guidance suggests that Washingtons recreational marijuana law, like its medicinal marijuana law, is unlikely to have any impact on employers rights in the workplace. Moreover, the state agency that regulates the sale and use of marijuana has stated that it does not expect the recreational marijuana law to inhibit employers from drug testing employees.
