While the presidential election has attracted extreme attention, marijuana legalization initiatives were on the ballots in nine states on November 8, 2016. Four states – Arkansas, Florida, Montana, and North Dakota – approved measures providing for the medical use of marijuana, and three states – California, Massachusetts, and Nevada – approved initiatives allowing for recreational use. The results in Maine are still close to call, but, if that measure is approved, it will be the fourth measure permitting recreational use. Only one state (Arizona) defeated a marijuana legalization initiative.
The following chart summarizes the approved initiatives, including implications for employers:
| State | Permitted Use | Employment Implications
|
| Arkansas | Medical | Employers cannot discriminate based on “past or present status as a qualifying patient or designated caregiver,” but do not have a duty to accommodate an employee’s use “in a workplace” or “working under the influence.”
|
| California | Recreational | The law does not impact employer’s rights to maintain a drug-free workplace or to prohibit marijuana use by employees or applicants, require the accommodation of marijuana use “in the workplace,” or prevent employers from complying with state or federal law.
|
| Florida | Medical | No express employment provisions.
|
| Maine (results still pending) |
Recreational | Employers are not required to accommodate use “in the workplace,” may enforce policies restricting use by employees, but may not refuse to employ someone “solely for that person’s consuming marijuana outside of the . . . employer’s . . . property.”
|
| Massachusetts | Recreational | Employers are not required to accommodate use “in the workplace,” and may implement workplace policies regarding use by employees.
|
| Montana | Medical | Employers are not required to accommodate use “by a registered cardholder, and may enter into contracts prohibiting use “for a debilitating medical condition.” Employees have no cause of action for wrongful termination or discrimination.
|
| Nevada | Recreational | Employers may enforce workplace policies restricting or prohibiting use.
|
| North Dakota | Medical | No express employment provisions. |
While not all of the approved initiatives contain express employment protections for marijuana users, employers must contend with the apparent tension between enforcing a workplace drug policy and the state legalization of marijuana use. Because marijuana remains a controlled substance under federal law, maintenance of a zero-tolerance drug policy is likely the most prudent course of action. Furthermore, employers may take note that each court to consider the wrongful termination claims brought by marijuana users under state laws has sided with employers’ rights to enforce drug-free workplace policies.
Nonetheless, as more states pass marijuana-related laws, and as off-duty marijuana users are discharged for positive drug tests, these policies may come under additional scrutiny in those states that do provide express employment protections. Going forward, employers should consistently enforce their drug-free workplace policies, and be prepared to educate employees about the potential consequence of a positive test for marijuana, regardless of state law protections. Employers, however, should continue to monitor the legal landscape, particularly in those states providing express employment protections to marijuana users, in the event that courts in those jurisdictions require the accommodation of a worker’s off-duty marijuana use and to take adverse job action only when such an employee is impaired on the job.
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