In 1996, the first registered medical marijuana dispensary in America opened in Fairfax, California. Now, just twenty-one years later, more than half of the states have legalized at least some use of marijuana. Attitudes, policies and laws concerning marijuana use continue to change rapidly across America. In fact, just last November, California, Massachusetts and Nevada each passed laws legalizing recreational marijuana use, joining four other states and Washington, D.C. in doing so. As is often the case, policies and procedures have struggled to keep pace with the new laws. Further complicating matters, cannabis use for any reason – medicinal or recreational – remains illegal pursuant to federal law. The interaction of the unchanged federal prohibition, disparate treatment by the states, and evolving social mores concerning marijuana is uncertain. It is, therefore, prudent for companies to reassess their existing marijuana use policies for work on federal, state and private jobs to consider and reflect on that interaction.
Continued Federal Prohibition
Despite the shift toward legalization in many states, cannabis continues to be classified as an illegal Schedule 1 drug under the Controlled Substances Act of 1970. This is the same designation given to hard drugs, such as heroin, cocaine or LSD. Because of this, workers on federal projects are generally subject to rigorous drug use policies that include zero tolerance testing requirements for all illegal drugs, including marijuana. For instance, the Department of Transportation responded to the recent passage of recreational marijuana laws by reiterating that it forbids any employee engaged in “safety-sensitive” positions (e.g. pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, etc.) from using any Schedule 1 drug, including pot. Additionally, the Drug-Free Workplace Act of 1988 requires some federal contractors to represent that they will provide a drug-free workplace and to identify and implement steps to prevent drugs (including marijuana) in the workplace.
Accordingly, it remains advisable for employers on federal projects to articulate and communicate drug use policies that prohibit the use of marijuana for any reason – medical or recreation—regardless of the legal status of marijuana use in the state.
State Laws Vary
The legality of marijuana use varies among the states, ranging from a complete prohibition in twenty-four states, to twenty-six states that authorize medicinal use, and seven states that permit medicinal or recreational use. Further, in evaluating whether a drug use policy is in compliance with state law, there are two types of laws that legalize cannabis use that must be considered: (1) those that decriminalize marijuana use (that is, provide protection from state law criminal prosecution) and accommodate its use (provide employee protections); and (2) those that just decriminalize its use. Yet there are limits to these simple generalizations. For instance, even in many of those states in which marijuana is legalized, laws often permit employers to maintain their strict “no tolerance” policies against their employees’ use of marijuana, including medical marijuana, and state owners may similarly persist in their prohibition against marijuana use on some or all projects.
Because of their recent development and the variance between states, it is uncertain how marijuana legalization laws will be applied. For example, Colorado is on the forefront of marijuana legalization, pulling in nearly $270 million in annual tax revenue. Yet even Colorado’s law includes contradictions. Recently, the Colorado Supreme Court refused to apply state law, relying instead on the federal prohibition of marijuana use in determining an employer’s right to maintain zero tolerance policies. In Coats v. Dish Network, LLC, 350 P.3d 849 (2015), the court held that a private employer had the right to fire an employee who tested positive for marijuana even though the employee was approved for medical use under state law and was not impaired at work. It is unclear whether the Coats decision would similarly permit state actors to terminate legal marijuana users.
Due to the wide variety of marijuana laws and regulations among the states, a one-size-fits all marijuana use policy for work on state projects is probably impractical. Rather, companies should monitor the changes and be prepared to implement and communicate marijuana use policies that comply with the law, and do not jeopardize the project or owner relationship. This can be a delicate balance. For instance, of all twenty-six states that have approved medical marijuana use, only a few, such as Arizona, Connecticut, Delaware, Illinois, Maine, Michigan and Rhode Island, have adopted laws protecting employees who legally use medical marijuana from workplace discipline for testing positive. Considering the changing political landscape and the incongruous relationship between state and federal marijuana laws, court intervention is almost certain, and will either permit movement toward federal enforcement and increased restriction or confirm the states’ authority to administer their own marijuana laws.
Balancing Employees’ Rights And Contractors’ Needs
The rapid growth of the marijuana industry has brought commercial opportunities to contractors related to the construction and renovation of facilities for the production, distribution and sale of marijuana, but it also has created legal uncertainties for them. For example, as is the case with public projects, it is important for a contractor to carefully evaluate the laws of the jurisdiction in which it is operating in order to determine what types of protections, if any, the jurisdiction’s marijuana laws afford its employees. In this regard, the use of medical marijuana raises potential privacy issues. While it may be useful from the contractor’s perspective to obtain detailed medical evaluations regarding its employees (including such documentation as the state registration for medical marijuana, accommodation needs, and similar information), it may be illegal under state and/or federal law to require that it be provided.
Similarly, denying access to medical marijuana in a jurisdiction in which it is permitted by state law might be interfering with an employee’s treatment. Federal law, such as the Americans with Disabilities Act, cannot be relied upon by affected employees, but state laws and protections are evolving. Considering the recent political shift in Washington, D.C., federal policies concerning the enforcement of existing laws is uncertain.
More relaxed marijuana laws may help contractors attract and maintain key or qualified workers. However, construction projects are, by their nature, full of hazards. The use of marijuana on a project site is both undisputedly dangerous and increases the risk of poor and inefficient work. Accordingly, even taking into account state laws that permit medical marijuana, a zero tolerance policy that affords the employer broad discretion in fashioning the responsive discipline may be, at least for now, the best policy for a contractor to have in response to legalized marijuana.
Legalized marijuana use creates a difficult challenge for construction companies. Worker and project safety must remain paramount considerations and nothing in the evolving landscape of legalized marijuana should alter a prohibition of impairment on the job. Further, companies performing work on public projects (state or federal) where an owner mandates a zero tolerance policy for drug use, including marijuana, should educate their employees of the need to avoid cannabis even if it is legal in the jurisdiction. Finally, regardless of the project type (federal, state or private), the rapidly changing needs need to be followed closely and policies reevaluated to avoid legal problems or human resources difficulties.