Legal Ease
The Changing Landscape of Marijuana Laws
By Richard D. Alaniz, Alaniz Law & Associates
of marijuana. While it remains illegal under federal law, the rapid legalization by states across the country has created significant challenges for employers trying to enforce drug testing and drug free workplace policies. Currently, thirty-eight states and the District of Columbia have legalized the use of medical marijuana. Twenty-two states, as well as D.C., have made recreational marijuana legal, with Ohio legalizing it just this November. An additional eight states are seriously considering legalization for one or both purposes. In many instances legal marijuana usage has compounded the
N already
difficult hiring market for employers. Pre-employment drug screening has resulted in more than a few applicants testing positive for marijuana, thus rendering them ineligible for hire. In some instances, employers have dropped marijuana from their screening panel. This of course raises potential liability issues if an employee is injured by a drug impaired co-worker. As is to be expected, the legalization movement has made marijuana a booming legal business. The pandemic shutdown and the idling of millions of workers triggered a tsunami of marijuana sales. Between 2020
and 2022 marijuana sales
increased by more than 100%. In 2022 marijuana sales exceeded $32 billion. In some cities, marijuana shops are as ubiquitous as Starbucks coffee shops. According to a Gallup study, the percentage of adults in the country who have tried marijuana at least once, if not more often, is 49 percent. Even
32 ❘ November 2023 ®
o laws that affect the workplace are changing more rapidly than those that have legalized the use
19 percent of people born before 1945 say they have tried marijuana. Today, marijuana usage has few, if any, of the negative connotations attributed to it in the past. A 2022 Pew Research Center study involving more than 5000 adults found that 59% believed that marijuana should be legal for both medical and recreational purposes. 30 percent felt it should only be legal for medical uses, while only 10 percent felt it should be illegal for any purpose. The most significant issues employers
for resulting from the
legalization of marijuana relate to the worker protections contained in many state legalization laws. To be clear, employers are not required to permit marijuana use in the workplace or allow employees to work under the influence of marijuana in any state where its use has been legalized for either medical or recreational purposes. However,
the permissible use away
from work can precipitate conflicts with employer drug testing and drug- free workplace policies. Almost all of the worker protections mandated by the state law prohibit discrimination and the denial of employment for merely
a positive marijuana test.
Most states are additionally requiring evidence of employee impairment on- the-job to support termination. Current drug testing is only able to confirm marijuana use at some point in the recent past, generally up to thirty days. This is established by the presence of marijuana metabolites in the person’s system. Unlike alcohol, there is no specific level of marijuana metabolites that can confirm impairment. Some states require witness observation of impairment to support the positive
drug test. However, there are no established or uniform standards for proof of impairment and observations can therefore be quite subjective. A few states have recently permitted the use of workplace impairment recognition experts (WIRE) who are specifically trained in identifying the signs of impairment. On the testing front, there have been reports recently that very recent marijuana usage, and therefore, probable impairment, can be confirmed by saliva testing. Unfortunately, this type of testing is still in the development stage, with the no indication when it will be available to employers. The trend to require evidence of impairment on-the-job has recently been taken to the extreme by the State of California, as in the case with many of their workplace regulations. As of January 1, 2024, employers in California will be prohibited from discriminating against an applicant or employee for the use of marijuana off- the-job and away from the workplace and requiring a drug testing for non- psychoactive marijuana metabolites in their systems. This essentially means that California employers will not be able to rely upon a test that only reveals the past usage of marijuana, which currently includes all drug testing. Like so many other workplace rules adopted in California, this approach is likely to spread to other states that have legalized marijuana usage. One further difficultly for employers arises in those states that have made medical marijuana legal is that when a disabled employee uses marijuana as part of their treatment regimen, the person is likely protected from discipline or termination under the provisions
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