Variability Reigns – Marijuana in the Workplace

Certainty is a positive trait when it comes to managing a workplace – to protect themselves from unintended liability, Employers need to know the rules and have the ability to apply those rules consistently.  Managing marijuana use by employees and in the workplace is a particularly nettlesome challenge.

The fundamental inconsistency is between federal law and the evolving law of the states.  Under federal law, marijuana possession and use remains illegal.  The states’ treatment of marijuana possession and use is literally all over the map.

New Hampshire adopted, in 2013, a law which established the legality of therapeutic use of cannabis by qualifying patients.  Chapter 126-X of the New Hampshire Statutes sets forth the terms, conditions and constraints for such use which, if followed, would insulate the users from criminal charges in New Hampshire (although, as noted above, they would remain exposed to federal criminal charges).  When it comes to employment, the statute explicitly provides that the therapeutic use law does not exempt a person from being charged for being under the influence in his or her place of employment or possessing cannabis in a place of employment without the written permission of the employer.  Nor is the law to be interpreted to require “any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment” or to limit the employer’s ability to discipline employees “for ingesting cannabis in the workplace or working while under the influence of cannabis.”

Hence a New Hampshire employer would have the statutory right to adopt a “zero tolerance” policy on marijuana use, including therapeutic use.

But results under the laws of different jurisdictions will be different, posing a problem for employers with facilities in multiple states or countries.  In Colorado, for example, both medical and recreational marijuana are legal – however, the Colorado Supreme Court has decided that employers are permitted to terminate employees for such use.  The medical marijuana law of Arizona prevents an Arizona employer from discriminating against employees based on the employee’s status as a medical marijuana cardholder, or for testing positive for marijuana use – so for an Arizona employer to dismiss an employee for marijuana use, presumably the employer would have to show that the employee was not merely using, but actually impaired and not properly performing the job in order to defend its action.  Maryland, which has a medical marijuana law with exceptions for employers similar to those in New Hampshire, is currently considering a bill to require accommodation by employers of medical marijuana users.  And across the international border in Canada, legal medical use is common and employers generally are required to accommodate.

Both employers and employees need to pay careful attention to the law in this area – changes have come and will continue to arrive as society’s attitudes about marijuana use, both medical and recreational, evolve.  While it’s safe to assume that employers will always retain the right to discipline or dismiss employees whose marijuana use interferes with their ability to safely and competently perform their jobs, the ability of employers to not permit any such use in their workplace, even when job performance or workplace safety is not implicated, may be constrained in the future.

About the Author: Steven L. Winer

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