Legal Use of Marijuana

Considerations for employers

Possession and recreational use of some quantity of marijuana is legal in four states (Alaska, Colorado, Oregon, Washington) and the District of Columbia. The use of medical marijuana is legal in 20 additional states. In addition, the U.S. Department of Justice has issued guidelines for federal prosecutors in states that have enacted laws authorizing the use of medical marijuana, advising prosecutors not to charge persons obtaining or using marijuana for medical use. How do these changes affect the ability of employers to ensure that their employees are unimpaired in the workplace?

For commercial motor vehicle drivers, regardless of whether they have a CDL, nothing has changed. Marijuana remains illegal under federal law. It is listed in Schedule I of the Controlled Substances Act, and it remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana for any reason. The Federal Motor Carrier Safety Administration website states it bluntly: Drivers taking medical marijuana, even if prescribed by a physician, cannot be medically certified. The same applies to any recreational use of marijuana by a commercial motor vehicle driver.

The driver qualification regulations in 49 CFR §391.41(b)(12)(i) state that a driver is physically qualified to drive a commercial motor vehicle if he or she “[d]oes not use any drug or substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic or other habit-forming drug.”

For non-driver employees, the issue is slightly murkier. Is it legal for a company to enforce a zero-tolerance policy prohibiting a non-driver employee from using marijuana, even if the employee uses the drug only during off-duty hours, the use is legal under state law, and the employee is sober during work hours?

A recent decision from the Colorado Supreme Court says yes. There, an employee used medical marijuana under a state-issued license to treat a legitimate medical condition. He claimed, and the employer did not contest, that he never used marijuana at work and was never impaired on the job. Nevertheless, his employer fired him when he failed a random drug test imposed under company policy.

He sued the company, using a Colorado state statute that makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” activities off the premises of the employer during nonworking hours. The Colorado Supreme Court ruled that statute did not protect the employee because marijuana use remains unlawful under federal law, even if it is lawful under Colorado state law.

All courts to have addressed the issue thus far have held that employers may continue to insist on a drug-free workplace, conduct drug tests (consistent with state laws regarding rights to privacy), and take adverse employment action based on positive drug tests. As more states decriminalize or legalize the possession and use of marijuana, however, new court cases with new theories of recovery will arise.

Employers who want to impose workplace drug testing on non-driver employees should consult with their legal counsel to ensure that their testing program and disciplinary standards comply with state and federal law.

Gases and Welding Distributors Association
Richard P. Schweitzer, Esq. Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Rick Schweitzer is president of Richard P. Schweitzer, PLLC in Washington, D.C. He is also GAWDA’s general counsel. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.