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What State Marijuana Legalization Means for Employers.
By Molly Batsch on April 1, 2013 at 3:25 PM

Drug test results sheetThe use of medical marijuana is currently authorized in 18 states and the District of Columbia. Two of these states—Colorado and Washington—have also legalized the recreational use of marijuana. Despite these recent changes in state law, marijuana remains illegal under federal law, creating confusion as to how the passage of these laws will affect employers’ rights in the workplace.

The simple answer is that state laws legalizing marijuana (whether for medicinal or recreational use), do not change an employer’s rights. Federal law still prohibits the use of marijuana, even for medicinal purposes. 

Likewise, Colorado’s new law specifically provides that it will not affect the right of an employer to prohibit the use, possession, or transfer of marijuana on the employer’s property. Similarly, Washington’s law does not establish any job protection rights for employees who use or possess marijuana. Consequently, employers may still enforce drug-free workplace policies. In fact, employers with federal grants or contracts that meet certain criteria must continue to maintain drug-free workplaces. Similarly, employers subject to federal drug-testing regulations, such as employers with safety-sensitive jobs regulated by the Department of Transportation, must continue to comply with these regulations.

However, employers seeking to maintain drug-free workplaces should carefully review and potentially revise their drug and alcohol abuse policies to prevent employee confusion. For example, drug and alcohol policies that prohibit only “illegal” drug use should be revised to prohibit the use of any drug which is illegal under federal or state law. In addition, because marijuana can remain in the system for days after off-duty use, employers should modify policies prohibiting working under the influence to prohibit any detectable amount of any drug or controlled substance illegal under federal or state law. In addition, employers should carefully review applicable state anti-discrimination laws that may require additional accommodations for current or former illegal drug users beyond those required by the Americans with Disabilities Act. In other words, while state laws authorizing marijuana usage do not diminish employers’ rights to enforce drug-free policies, careful policy review and revision may be necessary to ensure compliance with federal law, prevent employee confusion, and ensure compliance with applicable anti-discrimination laws.

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