The United States may follow as the third nation to legalize marijuana if the “Strengthening the Tenth Amendment Through Entrusting States (STATES) Act” is passed.

Marijuana (cannabis) is a Schedule I controlled substance under the federal Controlled Substances Act (“CSA”).  Schedule I substances are considered to have no medical use and have a high potential for abuse.  Under federal law, marijuana is plainly considered an “illegal drug.”

Notwithstanding marijuana’s illegal status under federal law, over half the states, including the District of Columbia, have enacted legislation to decriminalize or legalize marijuana.  These states’ statutes have caused confusion and uncertainty for employers as they attempt to navigate conflicting state and federal laws.

This confusion has been compounded by the Trump administration.  In January 2018, Attorney General Jeff Sessions rescinded guidance from the Department of Justice previously permitting states to develop marijuana marketplaces so long as the substance, its handlers, and users were well-regulated.  However, in June 2018, President Trump voiced support for the proposed STATES Act.

The STATES Act, as drafted, leans upon the Tenth Amendment to the United States Constitution to afford states a clear path to enacting marijuana legislation.  The Tenth Amendment mandates that powers not specifically granted to the federal government are reserved for the states.

The STATES Act, as drafted, would complete the following:

• Amend the CSA to make it inapplicable to any person acting in compliance with state laws regarding the manufacture, production, possession, distribution, dispensation, administration, or delivery of marijuana;

• Amend the CSA to exclude industrial hemp as a controlled substance;

• Maintain the CSA sections prohibiting the employment of minors in relation to marijuana;

• Prohibit the sale of marijuana at transportation safety facilities (for example, rest stops and truck stops);

• Prohibit the sale of marijuana to persons under age 21, other than for medical purposes; and,

• Permit financial transactions made pursuant to state marijuana laws.

In addition to proposed federal legislation, a recent U.S. Supreme Court decision in Murphy v. NCAA signals that the Court may not require states to undo their existing marijuana laws, if challenged.  In Murphy, the Court ruled that New Jersey is permitted to enact new sports gambling legislation even though a federal law, the Professional and Amateur Sports Protection Act, prohibits new sports gambling legislation.  The Court ruled that the federal statute could not prohibit New Jersey from enacting its sports gambling legislation on constitutional grounds.

Employers should be aware that, for a number of years, they could strictly enforce zero tolerance drug policies with respect to the off-site and non-working hours use of marijuana, even if the use was pursuant to a state’s marijuana law.  The foundation for such enforcement was that marijuana is a Schedule I controlled substance, and it is illegal.  Following the Murphy opinion and legislative posture of the STATES Act, such strict enforcement may no longer be prudent.

The legal atmosphere surrounding marijuana is poised for sudden and quick developments.  Employers should stay as up-to-date as possible to ensure their workplace policies regarding marijuana are as compliant as possible with state law, and potentially, new federal law.