By John DiNome, Joel Barras, and Hadley Perkins
Next week, residents of Oregon, Alaska, and Washington, D.C. will vote on initiatives to legalize the sale of recreational marijuana, reflecting a nationwide trend toward legalization. Given these and similar initiatives in other states, employers will face new challenges in managing their workforce. Policies implicated by these new laws are as varied as disability accommodation under the Americans with Disabilities Act, drug testing, pre-employment background checks and zero tolerance programs.
For instance, reasonable accommodations of employees with both a disability and a valid prescription for medical marijuana may differ under state and federal law. Some states prohibit employers from terminating an employee who tests positive for lawful medical marijuana use, even though such use is prohibited under federal law. Similarly, companies that conduct regular or random drug testing may have to revise what previously constituted a failed drug test. Of particular significance to companies with federal contracts, state legalization laws may affect their implementation of Drug-Free Workplace policies.
As for the immediate concern, if next week’s ballot initiatives pass, these are the consequences:
- In Washington, D.C., the proposed legislation would make the possession, use, transport, and growth of marijuana lawful. The proposed law would not legalize the sale of marijuana. A copy of the ballot initiative is found here.
- In Alaska and Oregon, the proposed laws would allow use, growth, commercial transfer, and non-commercial transfer of marijuana. Copies of these ballot initiatives are found here and here.
Given the potential conflict between federal and state laws as they currently stand, and the potential for more changes this November and beyond, employers should work with counsel to review current policies and manuals.
Employers Beware: Legal Recreational Use of Marijuana May Be Expanding
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