Legalization of medical and recreational marijuana use continues to spread across the United States despite the drug remaining a Schedule I controlled substance under federal law. This comes as respondents to Ogletree Deakins’ recent survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, indicated that keeping up with marijuana laws is already one of the most challenging areas of multi-jurisdictional compliance for employers.

As marijuana legalization continues to expand, and employers struggle with this challenging topic in managing their workplaces, three recent developments are representative of the future challenges that employers may face as this area of the law continues to develop.

Medical Marijuana Expands In the South

While most states have legalized at least medical marijuana, several, traditionally more politically conservative, states across the Southeast and parts of the Midwest have been slower to act. That is beginning to change. In February 2022, Mississippi Governor Tate Reeves signed the Mississippi Medical Cannabis Act to become the 37th state to legalize medical marijuana. The act authorizes the use of marijuana by those suffering from an enumerated list of 20 medical conditions, including cancer, Crohn’s disease, post-traumatic stress disorder, and any “chronic, terminal, or debilitating” condition.

Yet unlike many other state medical marijuana laws, Mississippi’s law does not provide direct, express employment protections for medical marijuana cardholders. Notably, the law contains many employer-friendly provisions, and does not require health insurers to pay for medical marijuana, require employers to permit or accommodate medical marijuana use, prohibit drug-testing programs, or prohibit employers from refusing to hire applicants who use medical marijuana.

While the Mississippi employers should remain mindful of separate but related disability accommodation considerations for medical marijuana cardholders, the new law represents the expansion of medical marijuana legalization to historically conservative states, and the more employer-friendly nature of these laws. With this expansion, many employers that have never had to deal with marijuana issues in the workplace will be required to acclimate themselves to the evolving legal landscape.

California Mulls Lawful Off-Duty Use Protections

With recreational marijuana now legal in 19 states across the country, an increasing number of those states, notably California, and cities are considering indirect employment protections—i.e., separate from the recreational marijuana laws themselves—for lawful, off-duty use of the drug. This comes on the heels of New York’s recreational marijuana legalization, which amended the New York lawful off-duty conduct law to include recreational marijuana use as “lawful” conduct. California’s Assembly Bill (AB) 2188, making its way through the state legislature in 2022, would amend the California Fair Employment and Housing Act, the state’s antidiscrimination law, to prohibit an employer from discriminating against “a person in hiring, termination, or any term or condition of employment … based upon the person’s use of cannabis off the job and away from the workplace.”

These “lawful off-duty conduct” laws are meant to prevent those using marijuana legally outside of the workplace from facing adverse employment actions, but they are creating additional compliance challenges for employers that wish to maintain a marijuana drug-testing program or ensure employees are not impaired at work, especially in safety sensitive jobs.

Cities Creating Their Own Rules

Major cities are also passing their own laws regulating marijuana and sometimes implementing employment protections for lawful, recreational use. In June 2022, the Washington D.C. city council unanimously passed a bill, B24-0109, to prevent employers form firing employees who fail marijuana drug tests with a few exceptions. Mayor Muriel Bowser signed the law and sent to Congress in July 2022. However, its employment protections will likely not be applicable until July 2023.

The D.C. law contains an exception for jobs designated as safety sensitive, allowing employers to impose harsher marijuana usage restrictions and disciplinary policies on those individuals. The law defines a safety sensitive job as a position in which it is “reasonably foreseeable” that an employee performing the job’s “routine duties or tasks while under the influence of drugs or alcohol” would “likely cause” harm or injury to others. 

Key Takeaways

States legalizing medical and recreational marijuana use at different stages and some cities passing their own laws are creating challenges for employers that want to maintain drug-testing programs. Employers are still generally allowed to maintain drug-free workplace policies and there may be certain safety-sensitive jobs where greater prohibition of marijuana use and drug testing is allowed. Still, employers may want to consider how loosened state restrictions may impact their traditional marijuana use policies, particularly the rise of laws providing employment protections for lawful, off-duty use.

Ogletree Deakins’ State Law Maps provide an overview of the current state of marijuana legalization laws.