Post-Election Review: Marijuana’s Unknown Future

Posted: November 22, 2016

Marijuana’s Unknown Future

Following the election, many are wondering what marijuana legalization and enforcement looks like under a President Trump administration. Although marijuana remains illegal under federal law, President Obama did not make a notable enforcement push particularly over the past few years. The “Cole Memo” published in 2013 noted that in states with strong and effective regulatory and enforcement systems to control marijuana use, distribution and sale were less likely to threaten the federal government’s priorities. According, President Obama’s administration did not push marijuana enforcement as a significant initiative. It remains unclear if President-elect Trump will take a different tone, although he has said in past interviews and debates that it should be a state issue and that he’s supportive of at least medical marijuana. However, his nomination of Senator Jeff Sessions as Attorney General has some marijuana legalization supporters nervous the relatively lax enforcement time will come to an end as Senator Sessions is rather adamantly against marijuana legalization. Setting the federal political environment aside, several states voted yes on Election Day to legalizing medical or recreational marijuana. For example, in Massachusetts Question 4 passed legalizing recreational marijuana. Employers face an increasingly complex landscape as it pertains to marijuana use, drug testing and employment. Notably though many of the marijuana laws provide carve outs that allow employers to prohibit use at the workplace. In Massachusetts, the Question 4 summary notes that employers are still able to prohibit the consumption of marijuana by employees in the workplace. If the employer is subject to federal regulations such as those under DOT, then the federal law will trump the state/local laws. From a color commentary perspective, we have seen some employers take the step to remove marijuana from the list of drugs they test for during the pre-employment process in light of these laws. These employers have kept their drug free workplace policies largely intact by prohibiting marijuana use during work hours, prohibiting individuals from showing up under the influence, etc. Thus far, case law on the issue has largely sided with employers, providing leeway to establish and enforce drug-free workplaces. For example, in November 2015, U.S. District Court for the Western District of Washington upheld an employer’s right to terminate an employee for medical marijuana use. The plaintiff – a former employee of the defendant – filed suit claiming employment discrimination under the Washington Law Against Discrimination. According to the allegations, the plaintiff possessed a valid state medical marijuana prescription for his medical condition, but was terminated after testing positive for marijuana following an injury on the job. The defendant maintained a drug-free workplace policy and claimed that Washington state law did not require employer accommodation for medical marijuana. Dismissing the plaintiff’s claims, the court found that there is no state law requirement to accommodate medical marijuana use when a drug-free workplace has been established regardless of whether the off-site medical marijuana use is to treat a disability. The court also cited the fact that marijuana continues to remain unlawful under federal law. Further, the court determined that the Washington Law Against Discrimination did not apply as medical marijuana use could not be a protected class under the law. A similar case to the above was addressed by the Colorado Supreme Court in June 2015. In that case, the Colorado Supreme Court found that the use of medical marijuana could not be considered lawful under Colorado’s “lawful activities statute” since it remains illegal under federal law. Accordingly, the employer did not violate the law when it terminated an employee who was a registered medical marijuana user following a positive drug test. To our knowledge, there have not been any widely publicized cases addressing the issue of recreational marijuana use. Ultimately, this is a complicated issue. Consultation with qualified legal counsel is definitely recommended.