Patchwork of Marijuana Laws Across the Country Affects Employers Differently
In Ohio, medical marijuana is now legal. Ohio employers are STILL ABLE to enforce drug free workplace policies for medical marijuana use.
Ohio has NOT (yet?) legalized small amounts of recreational marijuana. The rest of the country is a patchwork, but the trend toward legalization is clearly growing.
For example, 22 states, including Ohio, have legalized medical marijuana. These include Montana, North Dakota, Minnesota, Illinois, Michigan, Ohio, West Virginia, Pennsylvania, Maryland, Delaware, New Jersey, New York, Connecticut, Rhode Island, Florida, Louisiana, Arkansas, Oklahoma, New Mexico, Arizona, and Hawaii.
Nine other states have legalized recreational marijuana along with medical marijuana. These are Alaska, Washington, Oregon, California, Nevada, Colorado, Maine, Vermont, and Massachusetts, PLUS Washington D.C.
However, marijuana is still a Schedule I substance under the Federal Controlled Substance Act. Some federal regulations that affect marijuana use are still in effect regardless of the existence of state laws legalizing marijuana use.
For example, the Department of Transportation Drug and Alcohol Testing Regulation does NOT authorize medical marijuana, legal under a state law, as a valid medical explanation for a positive drug test result.
Federal contractors are required to maintain drug free workplaces and zero tolerance policies.
Aside from these policies, the federal Drug Enforcement Agency has NOT aggressively prosecuted marijuana use cases in states with legalized marijuana laws.
How do the state marijuana laws affect employers? The answer is – IT DEPENDS!
Some state laws expressly prohibit employers from discriminating on the basis of an employee’s use of legal medical marijuana as long as the employee complies with state law.
These states prohibit discrimination against medical marijuana users: Arizona, Connecticut, Georgia, Illinois, Maine, Minnesota, New York, Pennsylvania, and West Virginia.
In Nevada and New York, there is a duty to accommodate medical marijuana.
Some states allow employers to enforce drug free workplace policies for medical marijuana use: Ohio, Florida, Montana, Nevada, Vermont, and Washington.
California and Colorado allow employers to enforce drug free workplace policies for recreational marijuana use.
Some state laws FAIL to address the employment relationship at all: Massachusetts, Michigan, New Hampshire, New Jersey, North Dakota, and Oregon.
For employers who have facilities across multiple states, the landscape of marijuana legality is constantly changing and can create big problems!