New Laws Complicate Employee Marijuana Use Rules

While the first wave of medical marijuana laws beginning in 1996 generally left intact the rights of employers to prohibit and test for marijuana use, a number of new medical marijuana laws include employment-related protections for individuals using medical marijuana. As a result, employers need to re-examine their approach to medical marijuana.

On May 23rd, a Rhode Island court held that an employer violated state law when it denied employment to a medical marijuana cardholder who admitted she could not pass the pre-employment drug test. The employment protections of the Rhode Island law represent a departure from most earlier medical marijuana statutes. As employers began litigating issues related to the early laws, a pattern developed. State courts consistently ruled that employer conduct was not restricted by the laws governing medical marijuana use.

Legislatures have increasingly limited how employers may address medical marijuana use. This complicates an already problematic situation for multi-state employers. In the majority of states, employers may still prohibit employee marijuana use and mandate tests without limitation. However, a small but growing number of states require a more measured approach. Be careful about taking action simply because an employee admits to being a cardholder, and recognize that reasonable accommodation obligations exist for medical marijuana use pursuant to disability discrimination laws in many states. Watch for further developments from state legislatures with new marijuana laws pending.