As the smoke from the 2012 election dissipates, one clear winner has emerged: marijuana.
Two states -- Colorado and Washington -- passed ballot initiatives legalizing marijuana for recreational use. Another, Massachusetts, passed a measure to legalize marijuana for medical use. That brings the number of jurisdictions that have in some way legalized marijuana to 18.
It doesn't appear that the trend to decriminalize marijuana will reverse itself any time soon. Four more states -- Illinois, New York, Ohio and Pennsylvania -- have legislation pending before their general assemblies that would legalize medical marijuana. States continue to push the pot envelope even though marijuana is still very much an illegal drug under the federal law for any use.
How should employers cope with the likelihood that a growing number of employees may be doping, and doing so without impunity under state laws?
If court rulings on the issue so far are any indication, there is no need for employers to become paranoid. Nevertheless, a proactive review and revision to employee policy handbooks may be the best way to signal to employees how marijuana will be dealt with in the workplace -- legal or not.
A HAZY LEGAL LANDSCAPE
The legalization of marijuana, whether for recreational or medicinal use, has caused much legal confusion. Despite states' efforts to decriminalize pot, marijuana is still a Schedule I controlled substance under the federal Controlled Substances Act of 1970. This means that it is still illegal for individuals to possess, ingest, grow, manufacture, import, distribute or sell, in any quantity. Even in states that have legalized medical marijuana, you cannot obtain a prescription that can be redeemed in any pharmacy that dispenses medications regulated by the federal Food and Drug Administration.
States that have passed voter initiatives or enacted legislation, however, have established their own regulatory systems to govern and monitor how marijuana may be produced, purchased and used by the patient or consumer. The industry's growth has exploded since 2009, when the U.S. Department of Justice issued a memo to federal prosecutors advising them not to waste federal resources on prosecuting individuals who use medical marijuana in compliance with state laws.
State-monitored medical marijuana user registries, cultivation facilities, medical dispensaries and retail outlets sprouted ... well, like weeds.
This caused the Justice Department to be more specific about its intent to continue enforcing the Controlled Substances Act. In 2011, it issued a follow-up memo reminding everyone that it is committed to stopping larger-scale cultivation and trafficking of marijuana in all states. The Department warned that state legalization laws would be no defense to criminal or civil prosecution and added that, "Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financing laws."
Despite this warning and the crackdown by federal authorities, particularly in California, growth of the medical marijuana industry has continued unabated.
The legalization of pot for recreational use, widely considered to be a harbinger of things to come for many other states, will cause only more clashing between states and the federal government.
As Colorado Governor John Hickenlooper put it, "This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don't break out the Cheetos or Goldfish too quickly."
THE COURTS WEIGH IN ON WEED IN THE WORKPLACE
Despite the battle lines being drawn between states and the federal government on the enforcement of marijuana laws, both federal and state courts to date have been fairly consistent in how employers may react to marijuana in the workplace. Employers may ban it.
Most recently, the Sixth Circuit U.S. Court of Appeals affirmed the dismissal of a case brought by a Walmart employee who was fired after testing positive for marijuana. See Casias v. Wal-Mart Stores Inc. (Case No. 11-1227, 6th Cir. Sept. 19, 2012). The employee, who had been diagnosed with sinus cancer and an inoperable brain tumor, was terminated even though he had properly registered as a medical marijuana patient under the Michigan Medical Marijuana Act. The court held that the Michigan law was not intended to modify the state's default at-will employment rule, nor was it meant to form the basis of a claim for wrongful discharge in violation of public policy.
The Sixth Circuit's decision closely followed similar holdings by state supreme courts in California, Washington, Montana and Oregon -- all of which have rejected claims by employees seeking protection under medical marijuana statutes.
Similarly, courts also have rejected the argument that the Americans with Disabilities Act prohibits the discharge of employees who are medical marijuana patients. The Ninth Circuit U.S. Court of Appeals held that, while medical marijuana patients may have grave and debilitating disabilities, a "qualified individual with a disability" under the ADA does not include an individual who uses a drug that is illegal under federal law.
The court noted: "We recognize that the federal government's views on the wisdom of restricting medical marijuana use may be evolving. But for now Congress has determined that, for purposes of federal law, marijuana is unacceptable for medical use. We therefore necessarily conclude that the plaintiffs' medical marijuana use is not protected by the ADA."
WHAT'S AN EMPLOYER TO DO?
Many employers already have policies in place governing employees' use of alcohol and illegal drugs and providing for drug testing. Changes in state marijuana laws do not diminish the efficacy of those policies, for the most part.
Employers located in the 18 jurisdictions that have legalized marijuana, however, may want to review and revise those policies. Policy statements clarifying that marijuana use -- whether for medicinal purposes or purchased under state laws allowing recreational use -- is still prohibited will disabuse employees of the notion that they have expanded rights in the workplace. Providing clear direction from the outset may prevent some employees from "testing" the policy by bringing suit.
For employers in other states that have not legalized marijuana, you can stay ahead of the curve by revising your policy language in advance.
For employers who may choose to accommodate marijuana users, be cautioned. Allowing employees to use or possess marijuana in the workplace invites liability for accidents and negligent hiring claims. An employer who allows an employee to use marijuana outside of work time could also face challenges if the employee arrives at work under the influence.
For employees with disabilities who request medical marijuana accommodations under the ADA, steering them toward an alternative to the "alternative" drug would be best.
If you have questions about the material presented in this Alert, please contact Holli L. Hartman (firstname.lastname@example.org or 303.764.4046) or any member of BakerHostetler's Employment and Labor Group.
Authorship Credit: Holli L. Hartman
 Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Delaware, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.
 Some state legislation has provisions to protect employees, which may affect the ability of some employers to have a zero-tolerance drug policy in those states. For example, in Arizona, an employer may not discriminate against or otherwise penalize a person based on the person's status as a medical marijuana cardholder, unless it would affect the employers' benefits under federal law or regulations. See Ariz. Rev. Stat. sec. 36-2813 (2011). Rhode Island similarly prohibits an employer from discriminating against employees who are cardholders, but its law also provides that an employer may prohibit employees from being under the influence of marijuana in the workplace and need not accommodate the use of medical marijuana in the workplace. See R.I. Gen. Laws secs. 21-28.6-4 & 21-28.6-6-7. Employers in these states should check with counsel regarding their drug and alcohol policies.
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