On Election Day, Colorado and Washington became the first states to legalize the recreational use of marijuana. The passage of these laws raises questions about employers' ability to enforce company drug testing policies and limit marijuana use outside the workplace. Employers have already been caught between diametrically opposed laws when dealing with employees who use so-called medical marijuana in accordance with state law, but fail company drug tests for marijuana, an illegal drug under federal law. Courts have been consistent in affirming an employer's right to regulate marijuana use in the workplace. Now, however, the Colorado and Washington laws legalizing marijuana set the stage for additional challenges to employers' substance abuse and drug testing policies.
Citizens of Colorado and Washington passed ballot measures on November 6, 2012, legalizing the recreational use, display, purchase, and transport of 1 ounce or less of marijuana within the state. The laws, Initiative 502 in Washington and Amendment 64 in Colorado, would regulate marijuana in ways similar to the regulation of alcohol. Both laws prohibit driving under the influence of marijuana, the sale of marijuana by unlicensed facilities, and the use of marijuana by persons under the age of 21. The Colorado law specifically addresses employers' rights, stating the law "is not 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 . . . affect the ability of employers to have policies restricting the use of marijuana by employees." The Washington law does not mention employers; however, it does provide for a cost-benefit evaluation of the law's economic impacts on workplace safety.
Under the Washington law, legal possession and DUI limits will become effective on December 9, 2012, and the state will have until December 1, 2013, to establish rules related to licensing of producers, processors, and retailers. Until such rules have been promulgated, retail sales to the general public are not allowed. The law outlines a licensing system in which producers and processors must renew licenses annually and may not have any financial stake in the retail business. This system is similar to the three-tier system used to control the sale of liquor in many states. The law also provides that the surplus received by the state should be earmarked such that 55% will be expended on health care, 25% on drug abuse and treatment, 1% for marijuana-related research, and the remainder placed in the state general fund.
The Colorado law, Amendment 64, will become effective no later than January 5, 2013. Similar to the Washington law, the state will implement a licensing system for the manufacture and sale of marijuana and will promulgate rules related to the retail market no later than July 1, 2013. The law also allows Colorado residents to possess, grow, process, and transport up to six marijuana plants, so long as three or fewer are mature. To protect their privacy, consumers will be required to show only a government-issued ID, and the retail store will not be required to acquire or record personal information. The law also provides that the first 40 million dollars of revenue raised annually be credited to the public school capital construction assistance fund.
On the same day voters in Colorado and Washington approved the legalization of marijuana for recreational use, Massachusetts voters approved an initiative that decriminalizes the possession and use of marijuana by residents with debilitating medical conditions. Eighteen states (California, Washington, Alaska, Oregon, Maine, Hawaii, Colorado, Nevada, Vermont, Montana, Rhode Island, New Mexico, Michigan, New Jersey, Arizona, Delaware, Connecticut, and Massachusetts) and the District of Columbia have now passed legislation permitting the use of medical marijuana. Additionally, Maryland has passed laws that do not legalize the use of marijuana, but allow defendants being prosecuted for marijuana use to introduce evidence of medical necessity as a defense.
Despite the increasing rise of state medical marijuana laws and the legalization of recreational marijuana use in Colorado and Washington, marijuana use remains illegal under federal law. The Controlled Substances Act ("CSA") categorizes marijuana as a Schedule I drug, meaning that it has a "high potential for abuse" and "no currently accepted medical use in treatment in the United States." 21 U.S.C. §812 (2006). Moreover, according to the Food and Drug Administration ("FDA"), marijuana has no known medical benefits.
In 2005, the Supreme Court held that possession of marijuana is illegal under the CSA regardless of whether a state allows the use of medical marijuana. Gonzales v. Raich, 545 U.S. 1, 27-29 (2005). In its ruling, the Court stated that "the mere fact that marijuana -- like virtually every other controlled substance regulated by the CSA -- is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA." Id. After being terminated for failing a company drug test, some medical marijuana users have brought suits against their employers. These suits have alleged, among other things, that the employer violated the state medical marijuana law, that the employer violated the public policy of the state, and that the employer failed to accommodate for an employee with a disability. See e.g., Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). The courts have consistently held for employers in these suits. In fact, the Sixth Circuit and the state supreme courts of Oregon, Montana, Washington, and California have all upheld employers' decisions to terminate medical marijuana users. See e.g., Casias, 695 F.3d at 437; Roe v. TeleTech Customer Care Management LLC, 257 P.3d 586, 589 (Wash. 2011); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518, 521 (Or. 2010); Johnson v. Columbia Falls Aluminum Company LLC, DA 08-0358, 2009 Mont. LEXIS 120, at *2-3 (Mont. 2009); Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 203 (Cal. 2008). These courts have found that, because federal law preempts the state medical marijuana laws, employees in compliance with state medical marijuana laws are not protected from employer drug testing policies. See Emerald Steel, 230 P.3d at 529. Furthermore, the courts have held that medical marijuana laws do not create a public policy protecting medical marijuana users and that medical marijuana users are not a protected class under employment laws. See e.g., Casias, 695 F.3d at 437.
Employers should also be aware that their obligations under federal law are unaffected by the new legislation. In 1987, the Department of Transportation ("DOT") issued comprehensive drug and alcohol testing guidelines for employers who have employees in safety-sensitive positions regulated under the DOT. Under these guidelines, an employer is required to conduct testing both randomly and based on reasonable suspicion. After medical marijuana initiatives passed in several states, the DOT issued guidance that such laws were inapplicable to the DOT Drug and Alcohol Testing Regulations, stating that "it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's regulations to use marijuana." The DOT regulations are federal law and will necessarily preempt any state law. Therefore, employers in Washington and Colorado who are subject to DOT, and other federal regulations, should continue to comply with the applicable federal law.
Because of the legalization of marijuana, there may be a push in Colorado and Washington to quantify the amount of marijuana present in the system that would constitute impairment at the workplace. Washington has defined "under the influence" in the context of operating a motor vehicle as having more than 5 nanograms of THC per milliliter in the blood stream (the active ingredient in marijuana is tetrahydrocannabinol, or THC). Neither Colorado nor Washington has provided any guidance to employers as to the level of THC in urine, hair, or sweat that equates to being "under the influence" for disciplinary purposes in the workplace. Almost all workplace drug testing programs are based on the "presence" of marijuana in urine, hair, or sweat. Unlike alcohol, which metabolizes relatively quickly, marijuana can build up in the body's fat cells and be detectable for weeks after a person last used the drug. This means employees may fail drug tests for the presence of marijuana when in fact they are not impaired or under the influence of the drug at the workplace.
In reality, the victory by proponents of the legalization of marijuana may be short-lived. Under both federal preemption law and Supreme Court holdings, the federal government may at any time enforce the CSA's prohibition on the use of marijuana, despite state legalization. In February 2009, Attorney General Eric Holder commented that the federal Drug Enforcement Agency would no longer raid medical marijuana dispensaries in states that had approved medical use of marijuana. Later in the year, the Department of Justice issued a memorandum that federal law enforcement would not prosecute medical marijuana patients or their caregivers in states that had enacted laws authorizing the medical use of marijuana. While the federal government has passively allowed states to implement medical marijuana laws, it is unclear how the federal government will respond to the legalization of marijuana for recreational use. In 2010, Eric Holder, in response to California's legalization efforts, commented that he would "vigorously enforce" federal marijuana prohibition. However, he remained silent during the Colorado and Washington ballot measures and has yet to issue a statement from the Department of Justice.
The laws legalizing marijuana in Colorado and Washington are expected to have little immediate impact on employers implementing and maintaining workplace substance abuse policies, including provisions calling for termination of employees who test positive for marijuana use. However, legalization of marijuana by states, as opposed to the authorization of marijuana's use for medical purposes, may have longer-term implications for how employers treat marijuana use. Government officials in both Colorado and Washington have asked the U.S. Attorney General's Office for clear guidance as to whether the federal government will prosecute activities sanctioned by the new laws. If the federal government refuses to address the conflict between state and federal laws as to possession and use of marijuana in states where marijuana use is now legal, employers may need to develop substance abuse policies that treat marijuana in the same manner as legal drugs such as alcohol and prescription medication.
Courts have made it clear that employers may discipline and terminate an employee who tests positive for the presence of marijuana, even in those states that have approved the use of marijuana for medicinal purposes. Even so, the passage of recreational marijuana laws means that more individuals may be using marijuana if the federal government does not address the conflict between federal and state marijuana laws. Therefore, employers should be prepared for challenges, especially to pre-employment and random drug testing programs. Employers can expect an increased number of employees who claim that their state's marijuana laws protect them from negative consequences as a result of a failed drug test. Employers should review their substance abuse and drug testing policies to ensure maximum defensibility of these policies in light of state marijuana laws.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.