Marijuana and Employment – New Laws Impacting Employers

Posted: July 09, 2015

Over the past several months, numerous jurisdictions have either passed laws or issued court decisions impacting employers as it relates to medical and recreational use of marijuana. The following is a high level summary of a select handful of those jurisdictions. Washington, D.C. The District of Columbia passed legislation in May 2015 titled, “Prohibition of Pre-Employment Marijuana Testing Act of 2015”. Under the Act, employers may only conduct a pre-employment drug test for marijuana after a conditional offer has been extended. The Act does not impact or diminish an employee’s obligation to comply with workplace drug use policies or require an employer to permit the use, possession or consumption of marijuana in the workplace. Further, employers may still revoke the conditional offer of employment based on a positive test for marijuana. Finally, the Act does not apply if employers are required by law to conduct a drug test. The Act was signed by Mayor Vincent Gray and published in the DC Register on May 29^th. There was a 30 day congressional review period; however, no activity appears to have occurred that would prevent this legislation from becoming law. Colorado On June 15, the Colorado Supreme Court upheld an employer’s termination of an employee registered as a medical marijuana user under Colorado state law. In this case, the employee was a quadriplegic who registered for and obtained a state-issued license for medical marijuana in 2009. Following a positive drug test in 2010, the employer terminated the employee for violating the company’s drug use policy. The employee then filed a wrongful termination claim alleging that Colorado’s “lawful activities statute” provided protections against employment termination based on outside of work activities. The case hinged on the definition of “lawful” which a majority of the Court of Appeals determined included both state and federal law. Upholding the Court of Appeals decision, the Supreme Court found that the use of medical marijuana could not be considered “lawful” as it remains illegal under federal law. Therefore, the “lawful activities statute” was inapplicable and the employee’s claims were denied. Oregon Starting July 1, Measure 91 in Oregon legalized the recreational use of marijuana for individuals 21 years of age and older. As outlined in the FAQs provided the state, individuals may grow up to four plants on their property grow up to four plants on their property, possess up to eight ounces of usable marijuana in their homes and up to one ounce on their person. Recreational marijuana cannot be sold or smoked in public. The FAQs specifically outline that Measure 91 does not impact an employer’s ability to drug test job applicants or employees. As stated in the law itself, the Act may not be construed to “To amend or affect in any way state or federal law pertaining to employment matters.” Further, Measure 91 does also not invalidate or impact the Oregon Medical Marijuana Act. Georgia Effective April 16, Georgia Act 20 (also known as “Haleigh’s Hope Act”) provided for the regulated medicinal use of marijuana to treat certain conditions and created the Georgia Commission on Medical Cannabis. Under the Act, it is lawful to possess 20 fluid ounces or less of low THC oil[1] if the individual is registered with and has a registration card issued by the Department of Public Health and the substance is in a pharmaceutical container that indicates via a manufacturer’s label the percentage of tetrahydrocannabinol. Alternatively, it is also lawful to possess the 20 ounces or less of low THC oil if the individual is involved in an authorized clinical research program, has a permit issued and the substance is in the labeled pharmaceutical container. The Act outlines several penalties, classifying possession of 20 ounces or less of low THC oil without meeting the above requirements as a misdemeanor offense. Possession of between 20-160 ounces of low THC oil constitutes a felony offense with a potential punishment of 1-10 years imprisonment and/or a fine not exceeding $50,000. There are additional penalties outlined for individuals who sell, manufacture, deliver or possess higher amounts of low THC oil. There is no mention in the Act of protections approved medical marijuana users may have in pre-employment drug testing or during employment. Medical and recreational marijuana use can complicate the hiring process and the employment relationship. Employers should consult with counsel to determine how best to approach the issue of regulating and testing applicants and employees for marijuana. [1] The Act describes low THC oil as an oil that contains not more than 5 percent by weight of tetrahydrocannabinol and an amount of cannabidiol equal to or greater than the amount of tetrahydrocannabinol.