As of the date this article was published, there are 33 states where marijuana used for medicinal purposes has been legalized. Eleven of those states have also made marijuana legal for recreational use.
At the same time, however, federal law still treats marijuana as an illegal drug. The Drug-Free Workplace Act of 1988 requiring employers that do business with the federal government to maintain a drug-free environment is still on the books.
In essence, it’s a tangle of conflicting laws for businesses seeking to maintain a zero-tolerance drug policy at the workplace.
So far, the courts haven’t been helpful in producing any kind of clarity or uniform policy.
In Washington and Oregon, state courts ruled that employers could enforce their workplace drug policies, including for medical marijuana. In short, it was legal for the employee to use, while also legal for the employer to forbid.
However, courts in Connecticut and Rhode Island have ruled that employees could not be terminated because of marijuana use. Rulings there said that the Drug-Free Workplace Act doesn’t specifically mandate drug testing or even a guarantee that employees don’t use drugs in their spare time—simply that the workplace itself must be drug-free.
Advocates of drug testing would say that the issues of workplace safety and productivity are still at risk if someone is using drugs on their own private time. Advocates of marijuana legalization, on the other hand, argue that “using” is a term that best describes illegal drugs—which marijuana is not in many states.
Except when it is.
All of which is to say we have a legal mess on our hands.
The inherent contradictions between federal law and the laws of an increasing number of states, combined with contradictory court rulings, have made it impossible for businesses and employees to know what’s expected of them.
The need for clarity—from either the U.S. Congress or the United States Supreme Court—may be the only way out.