Marijuana Goes Mainstream: Challenges for Employers

In 1996, California became the first state to legalize the use of marijuana for medical purposes. As of January 2020, recreational adult use of marijuana will be legal in 11 states, with a total population of more than 92 million — demonstrating just how dramatically the legal landscape and attitudes toward marijuana across the country have shifted in just over two decades.

What was previously considered an illicit substance — the use or possession of which often prompted criminal charges and potentially harsh sentencing — is now part of the mainstream. With the public’s backing, more states are legalizing or decriminalizing the use or possession of the drug. As of September 2019, 46 states, the District of Columbia, and three US territories have legalized at least some form of medical use of marijuana or tetrahydrocannabinol, its psychoactive ingredient. Ten states and the District of Columbia — along with Guam and the Northern Mariana Islands — currently allow adult recreational use, typically with quantity restrictions, with Illinois set to join their ranks in 2020.

Meanwhile, a record number of Americans now support legalization efforts — by a 2-to-1 margin in an October 2018 Gallup poll, a reversal from a Gallup poll conducted in 2000. Many Americans are also now regular users of marijuana, and freely admit to being so. And perhaps unsurprisingly, given these trends, marijuana is the most commonly detected illicit drug in workplace testing, far outpacing other major drug categories.

And yet perils abound for employers, which must balance state laws not only against longstanding federal anti-drug policy, but also against employees’ rights and the imperative to maintain safe and drug-free workplaces. Case law, legislation, and court rulings generally support employers’ right to keep marijuana out of the workplace, with some limits. The question of whether to use marijuana as a form of treatment in workers’ compensation claims, meanwhile, is still mired in confusion.

As marijuana policy evolves, employers now face significant challenges in navigating the ever-evolving attendant workplace issues. Employers must grapple with managing disability, accommodation, drug testing, and workplace safety issues among others in the absence of legislative or court guidance. And they must balance compliance with these complex laws against their duty to establish safe and productive workplaces.

In managing marijuana in their workplaces, employers should consider taking several actions, including:

• Evaluating and updating employee policies on marijuana.
• Carefully evaluating accommodations issues.
• Focus on training.
• Staying abreast of legal, regulatory, and industry shifts.