Chronic Considerations: Employment Implications of Marijuana Legalization – Lexology

Marijuana use is legal in seventeen states and the District of Columbia, and an additional nineteen states allow its use for medical reasons. In the last six months, New Jersey, New Mexico, New York, and Virginia have passed legislation allowing the recreational use of marijuana. Ten years ago, marijuana was not legal in any state. The brisk pace of marijuana legalization at the state level raises significant questions about the enforcement of workplace drug policies, especially where those policies are required by federal law. At the federal level, marijuana is still illegal, is still covered by the Drug-Free Workplace Act, and is still prohibited under Department of Transportation testing requirements.

Employer Considerations

In this rapidly evolving landscape, employers face complex issues when dealing with drug-free workplace and testing policies. Employers are advised to consider the following key issues:

Interplay Between Federal and State Laws: Federal agencies governing employers in performing public safety and national security functions generally require drug-free workplace policies and federally mandated drug testing. Employers in safety-sensitive transportation industries, such as trucking, railroads, and aviation, must comply with vigorous drug-testing requirements by the Department of Transportation, including prohibitions on the use of marijuana. In addition, the Drug-Free Workplace Act of 1988 (DFWA) requires federal grantees and contractors to implement a drug-free workplace policy and establish a drug-free awareness program as a precondition for receiving a federal grant or a contract. Notably, DFWA does not require covered employers to test employees for drugs or terminate them for drug-related violations. When implementing workplace policies concerning the possession and use of marijuana, employers must consider how state marijuana laws interact with such policies and with other federal laws. Where employers are required to obey federal laws in their implementation of drug policies, they must comply with the federal mandates even if

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