Legal Ease The Rapidly Evolving Marijuana Rules By Richard D. Alaniz, Alaniz Law & Associates T


he landscape regarding marijuana use seems to be changing so rapidly that it is difficult to keep up. More than half of the U.S. has now legalized some form of marijuana use. Currently 33 states and the District of Columbia permit the use of marijuana for


either medical or recreational


purposes, or both. In 10 states as well as D.C., the use of recreational marijuana is lawful. Today, more than 20 percent of all Americans live in a state where recreational use is legal. As of January 1, 2020, Illinois will be joining the list of states that have legalized cannabis use. Moreover, all the major Democratic presidential candidates except Joe Biden support legalizing marijuana. It is possible that the presidential election will completely rewrite the law on marijuana in the US.


The Stats on Marijuana The majority of Americans have accepted the idea that marijuana use should not be penalized. Not surprisingly, almost two-thirds (2/3) of millennials hold that view. In fact, a recent study found that more than 22 million people in the U.S. used marijuana within the past month. Despite the increase in legalized marijuana, it


is still illegal in many


states and, more importantly, under federal law. The federal Controlled Substance Act classifies marijuana as a Schedule 1 drug, along with LSD and heroin. Despite the surveys that confirm declining objection to marijuana use, there is not currently great support for its national legalization. It will likely remain an unlawful controlled substance under Federal law for at least the time being. But, the climate is changing.


Marijuana at Work


It is the potential effects of marijuana use, both medical and recreational, on


30 ❘ January 2020 ®


the workplace where the issue causes the


greatest concerns. A National


Institute of Drug Abuse study found that employees who tested positive for cannabis had 85% more injuries; 55% more industrial


incidents; and 75%


higher absenteeism rates. Until recently, challenges to employee terminations for testing positive for marijuana were almost


always dismissed as proper


under employers’ drug-free workplace policies. In some cases the termination was challenged under state laws that provide protection for personal conduct away from the workplace. The courts consistently ruled that since marijuana was unlawful under federal law, enforcement of a drug-free workplace policy


banning its presence was permissible despite the state law.


State Law and Marijuana While maintaining drug-free workplaces has long been the rule for most Ameri- can businesses, there has been a rapidly developing trend for states to include ex- plicit employment protections as medi- cal marijuana laws have been adopted or amended. A few states have exclud- ed “safety sensitive” jobs. For example, state regulations in Massachusetts list al- most 300 positions as “safety sensitive” and exempt from protective statutory legislation. However, currently 13 states have some form of protective language for medical marijuana use. In fact, as of January 1, 2020 Nevada will become the first state where employers may not deny employment to an applicant that tests positive for marijuana on a pre-em- ployment drug screen. In Massachusetts, the state Supreme Court permitted the state’s disability discrimination law to be used to challenge a termination decision affecting a medical marijuana user. The employee used medical marijuana away from work as part of the treatment for a


disabling condition. The legal rationale applied by the Massachusetts court is consistent with the increased workplace protection afforded to disabled employ- ees. It is quite possible that the same rationale will soon be utilized by other states. It is especially likely in the three liberal West Coast states, California, Or- egon and Washington, that were among the first to legalize marijuana use and have developed a large-scale marijuana industry. In addition, the costs attendant to the use of medical marijuana have recently become reimbursable medical expenses under the Workers Compensa- tion rules of Connecticut, Maine, Min- nesota, New Jersey, New Hampshire and New Mexico. This trend is likely to spread to other states that permit the use of medical marijuana.


OSHA and Marijuana


Until early 2019, OSHA had adopted a troubling approach to employer post- accident drug testing under its rules on the reporting of work-related injuries. It interpreted its rules as prohibiting post- accident drug testing as retaliatory and unlawful unless facts indicated that on-the-job drug impairment may have played a role in the accident. A major problem for employers is that there are currently no viable tests to confirm actual impairment by marijuana use. Virtually all current testing procedures test for the presence of marijuana metabolites. Tests for levels to confirm “impairment” are a work in progress. Fortunately, OSHA’s interpretation of its rules on post-accident drug testing were recently rescinded by the Trump Department of Labor. In October, 2019 a company from Northern California announced that in 2020 it will begin marketing a hand-held device similar to a breathalyzer that can run tests for both alcohol and marijuana. According


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