Medical Cannabis and Employment Law
Now that more than half of US states and the District of Columbia have legalized cannabis for medical purposes, and a handful of states have legalized it for recreational use, the fact that more people may be using cannabis have important implications for employment law, specifically in terms of in-house drug-testing rules as well as what kind of accommodations should be made for medical users. For states like California, medical cannabis has been around for a while now, but for other states, such as Pennsylvania, this is all very new.
Drug-testing is an important area here, as an employment lawyer relies on can explain. Even Labor Secretary Alexander Acosta has said that employers should “step back” from drug testing for legal cannabis use, emphasizing the fact that a failed drug test could impede employment when so many workers are fighting to find a job. Still, while cultures shift around cannabis and some employers refrain from using pre-employment drug tests that pick up cannabis use, some others still rely on them. In Illinois, for instance, companies continue testing for cannabis as a condition of employment, even though cannabis is legalized for medical purposes.
Prior to legalization, drug screening became more commonplace in workplaces in the late 1980s. If more and more employers start to exclude cannabis from testing, this would be the largest shift in employment-based drug policies since that time. The decision on whether to test could, in time, be more focused on what kinds of jobs are reasonably related to testing for cannabis use, such as operating heavy machinery, as opposed to something less directly connected to worker safety. In line with this, proponents of keeping testing in place say that it has a lot to do with safety and productivity.
Apart from drug testing, there are other important issues. For example, one piece of legislation that deals with this topic, AB 2069 in California, failed to pass committee recently. It would have required employers to accommodate medical cannabis users. Those against the bill said the protections were too broad and got in the way of the legally-mandated ability of employers to regulate substance use. The law gave more protections to medical users, but still ensured that they should not come to work impaired.
As more states legalize cannabis for recreational use, as Michigan might in November, the sea change on policy and culture around marijuana creates critical employment law questions. While it remains illegal federally, this leaves many users at the state level at a complicated point between employer policies, state laws that legalize cannabis, and the restrictive federal laws. This is an ongoing issue that employers and employees ought to keep track of.