What to Do When State and Federal Laws Disagree
Nationwide, laws around marijuana are in flux, and employers struggle to develop appropriate policies. Individual state laws vary significantly, including who the law applies to, the quantity of marijuana permitted, who has access, how it may be obtained, liability protections and statutory requirements for authorized use. This article examines key issues and offers perspectives on logical actions.
Across the United States, marijuana laws continue to evolve – with no clear directive for employers. With a growing divide between existing state and federal laws, companies must decide how best to proceed. All the while, public acceptance is increasing.
At its core, the cannabis conundrum challenges companies to consider the legal risks associated with employee use, the objectives of drug-free workplace programs and what this means for employment testing panels. This presents a unique situation, especially for those with offices in multiple locations.
Defining the Issue
To start, employers need to know the basics. Per the 2017 Report on the Health Effects of Cannabis and Cannabinoids, marijuana and cannabis are used interchangeably but exist as separate entities. More specifically, the report states, “cannabis is an overall term, describing cannabinoids, marijuana and hemp, all derived from the cannabis sativa plant.”[1]
What makes cannabis so perplexing, before even considering what the law says, is the dearth of medical research. Many scientific knowledge gaps about marijuana risks and benefits exist because the research to this point has been stymied. In order to conduct a study, researchers need to obtain a license from the Drug Enforcement Administration and use research-grade marijuana. Only recently did the DEA make this process easier in an effort to facilitate additional research; however, it could be years before current studies are complete.
Without evidence to cite, employers must work with the information available, and according to the New England Journal of Medicine, some 9 percent of those who experiment with marijuana will become addicted. This is particularly concerning, especially when there is no clear-cut way to determine impairment.[2] This does little to assuage the concerns of employers worried about safety, health and productivity in the workplace.
What the Law Says and Does
Another factor is the conflict between state and federal law. The Office of National Drug Control Policy continues to classify marijuana and marijuana extracts, including cannabidiol, as Schedule I drugs under the Controlled Substances Act, citing a high potential for abuse and no FDA-approved therapeutic use.[3] Yet, while marijuana remains illegal at the federal level, more than half the country has approved it for medical or recreational use.
Individual state laws vary significantly, including who the law applies to, the quantity of marijuana permitted, who has access, how it may be obtained, liability protections and statutory requirements for authorized use. Louisiana, for example, restricts use to oils and topical applications only. Virginia, on the other hand, enacted a law that allows for the possession of marijuana if prescribed by a doctor. The problem is that federal law prohibits doctors from writing out these prescriptions. As a result, doctors are writing recommendations rather than prescriptions. Confusing to say the least.
For employers, navigating these laws requires a deep understanding of the individual state mandates and historical precedent. On several occasions, state courts have held that employers are not required to accommodate medical marijuana use. In Coats v. Dish Network, the Colorado Supreme Court decided that “…under the plain language of section 24-34- 402.5, C.R. S. (2014), Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”[4]
Trends and Best Practices
In response to this complex and growing issue, most employers choose to uphold their existing drug-free workplace programs. There are some, in states with recreational and low-level THC laws, that give more leeway by removing marijuana from drug-screen panels, but these are the exception, not the rule. These organizations are likely to operate in Arizona, California, Colorado, Connecticut, Delaware, Illinois, Massachusetts, Maine, Minnesota, Nevada, New York, Rhode Island and Washington state. Across the rest of the country, or for employers with offices in multiple states, policies remain largely unchanged.
As a best practice, employers should consult with legal counsel about their organization’s risk tolerance position and legal risk mitigation strategy. From here, develop an official policy on medical marijuana, including extracts and oils, as well as legalized/recreational use. Consider guidance from the Equal Employment Opportunity Commission, job functions and legal implications as part of this process. The end result should be clearly communicated in the organization’s policy about drug and alcohol testing.
While federal law is unlikely to change anytime soon, watch state laws carefully and do not take action against an employee or applicant that makes a medical marijuana claim without legal counsel. As needed, look to state and federal regulations and rulemaking.
[1] https://www.nap.edu/catalog/24625/the-health-effects-of-cannabis-and-cannabinoids-the-current-state
[2] https://www.nejm.org/doi/full/10.1056/NEJMra1402309
[3] https://www.whitehouse.gov/ondcp/key-issues/marijuana/
[4] https://www.courts.state.co.us/userfiles/file/court_probation/supreme_court/opinions/2013/13sc394.pdf
Josephine Elizabeth Kenney, J.D. is Chief Global Compliance Officer at First Advantage. She has over 25 years of experience in screening; her areas of expertise include workplace drug and alcohol testing, background screening and FBI/CJIS fingerprinting. 
