January 28, 2021 10:30 am ETEstimated Read Time: 5 Minutes
The November 2020 election was a great win for advocates for cannabis legal reform, with four states voting to legalize recreational cannabis, joining the 11 other states that have decriminalized recreational cannabis use. South Dakota, in addition to legalizing recreational use, passed medical cannabis legislation—as did Mississippi—bringing the total number of states where cannabis is legal in some way to 36.
For those living in states where cannabis was legal for medicinal use and now are living in the new world of recreational use, it may be tempting to forego bureaucracy, medical tests, and licensing fees in order to access their medicine, but some lawyers have written that medical may still be the way to go to keep on the good side of employee handbooks.
Medical Cannabis and Employment
Employers and their lawyers have been grappling with the implications of medical cannabis for years, while most agree that employers are still able to enforce a drug-free workplace, regardless of an employee’s medical cannabis status, it can be more complicated.
Kami Hoskins, an associate with Phoenix labor and employment law firm Jennings, Strouss and Salmon PLC, told this writer in 2014, when medical cannabis was new in Arizona, that making sure employees aren’t impaired on the job can be an issue.
“The Arizona Medical Marijuana Act suggests that (employers) are not allowed to discriminate against cardholders for testing positive for use of marijuana, but there are other laws the employer can look at to sort of help move through the process,” she said.
More recently, and addressing more widespread issues, David Reischer, attorney and CEO of LegalAdvice.com suggested that it takes great care to walk the balancing act of keeping a workplace safe and respecting an employee’s need for medication.
“Several states have specific laws protecting medical cannabis patients from employment discrimination,” Reischer told Business News Daily in June 2020. “Typically, employers can require drug testing before employment and at random times, so long as there is no discrimination against medical marijuana users [who] are legally allowed cannabis for medicinal reasons.”
Apply For Your Medical Marijuana Card Today
Veriheal has satisfied hundreds of thousands of patients nationwide
Get approved or your money back
Appointments available on-demand
Customer support available 24/7
What Federal Law Says
According to legal analysis blog JD Supra in December 2020, “The federal Americans with Disabilities Act (ADA) and Rehabilitation Act expressly exclude from coverage employees or applicants “who [are] currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a); 29 U.S.C. § 701(a); Although several jurisdictions have legalized medical or recreational marijuana use, none require employers to permit employees to use or consume marijuana in the workplace or on working time. Similarly, almost all of those jurisdictions permit employers to take disciplinary action against an employee who is under the influence of or impaired by marijuana in the workplace or on working time, even if the employee legally used or consumed marijuana while off duty. Decriminalization, in other words, bestows upon employees a defense to criminal prosecution, not an absolute, affirmative right to use medical marijuana against their employer’s policies.”
*Emphasis added by Veriheal.
JD Supra continues in their analysis to note that Pennsylvania and West Virginia permit disciplinary action against an employee who is a registered medical marijuana user and under the influence of marijuana at work only if the employee’s use results in conduct that falls below the normally accepted standard of care for that position. And “some states have enacted medical marijuana statutes that prohibit discrimination based solely on an employee’s status as a registered medical marijuana cardholder. Five of those states prohibit employers from terminating employees who are registered medical marijuana users simply because they are unable to pass a drug test.”
What Recreational Cannabis Means for Employment
As JD Supra noted above, recreational cannabis and medical cannabis are federally illegal, meaning all levels of legalization are state-specific. Using Arizona as an example, in which Hoskins previously noted an employee with a medical cannabis card can not be discriminated against for testing positive on a drug test, recreational cannabis provisions don’t seem to have as many protections.
According to Employment Law World View, a legal website, legalizing recreational cannabis in Arizona does not automatically require employers to tolerate the use of cannabis by their employees. Specifically, the Arizona legalization laws do not:
Restrict the rights of employers to maintain a drug-and-alcohol free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees;
Require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment; or
Restrict the rights of employers to prohibit or regulate conduct that occurs on or in their properties.
While no lawyer would go on the record for this article, based on past and recent statements in the legal communities, it appears that one would have more protections under the law with a qualifying medical cannabis card than by trusting in recreational legalization.
*This article is an analysis and is not meant to be legal advice. Please consult with an attorney in your jurisdiction if you are facing employment issues as a result of cannabis use.
Emily Overholt is a writer and editor with a longstanding passion for the political and personal impact of cannabis. She often looks at the intersection of cannabis, business, politics and human stories. When not online, she can be found spoiling her dogs.
Blunts: What are they exactly, and how do they affect your body? If you’re interested in smoking blunts—or already smoke them—this guide is for you. We’ll cover everything you need to know about this popular cannabis intake method, including how they’re made, how they differ from spliffs and joints, risks of use, and alternative intake…
“Stoned,” “high,” “tripping,” and “baked,” are all terms engrained in the cannabis community. These metaphorical descriptions contribute to how we perceive, interpret, and learn from the experiences produced by cannabis consumption. Cannabis experiences, of course, are unique and highly variable. Specific plant strains, the presence of other cannabinoids, different delivery methods, and a user’s individual…
Thanks to the growing wave of legalization, more consumers than ever can grow their own cannabis right at home. Growing essentials that used to be secretive are now bought and sold freely. This includes items, like grow tents, nutrients, LED lighting, HPS lighting, ventilation, and more. Keeping all these items straight is hard enough, but…
Skin diseases plague millions of individuals, inflicting both physical discomforts in addition to mental and social stress. Thankfully, there is no shortage of skin treatment options available on the market. That said, this established market may soon be in for a major shake-up if recent cannabis research is any indication. Traditionally, cannabis research focused on studying…
As more states move toward legalization, accurately detecting impaired driving is of the utmost importance. Field Sobriety Tests (FSTs) have long been the go-to method for law enforcement to assess driver impairment caused by substances like alcohol. However, a recent 2023 study published in JAMA Psychiatry raises serious questions about the accuracy of these tests…
The statements made regarding cannabis products on this website have not been evaluated by the Food and Drug Administration (FDA). Cannabis is not an FDA-approved substance and is still illegal under federal law. The information provided on this website is intended for educational purposes only and is not intended to diagnose, treat, cure, or prevent any disease. It is not intended as medical advice and should not be considered as a substitute for advice from a healthcare professional. We strongly recommend that you consult with a physician or other qualified healthcare provider before using any cannabis products. The use of any information provided on this website is solely at your own risk.