Zero Tolerance for Zero Tolerance Marijuana Policies?

10 February 2020 Labor & Employment Law Perspectives Blog
Author(s): Patrick J. McMahon

Employers are undoubtedly aware of the ever-changing landscape of marijuana laws across the country. Complicating matters for larger employers is that these evolving statutes are creatures of state law with little uniformity across jurisdictions. One area that can be particularly vexing is an employer’s ability to take action against employees who test positive for marijuana under zero-tolerance drug policies.

When marijuana was first legalized under state medical marijuana programs, many states permitted employers to terminate employees testing positive for marijuana, even if they were legal card holders under a state program. However, states that later enacted medical marijuana programs began including anti-discrimination provisions prohibiting employers from taking action against employees based on their status as lawful medical marijuana users. States that currently have such anti-discrimination provisions include Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island and West Virginia.

Notably, even some of the early medical marijuana states are reconsidering their initial laws that did not include anti-discrimination provisions. New Jersey, for example, just added an anti-discrimination provision this past summer after implementing the original program in 2010. Similarly, Florida may not be too far behind, with two measures currently sitting in its legislature that may provide similar protections to medical marijuana cardholders.

The protections do not necessarily end at medical marijuana either. Legalized recreational marijuana is seeing an uptick in protections as well. Nevada, Maine, and New York City prohibit employers from testing for marijuana during the employment application period altogether. What’s more, some states where courts have found no protections for recreational users are now revisiting those opinions. One Colorado legislator has introduced a bill that would expand employment protections to recreational users. This is largely in response to a 2015 Colorado Supreme Court decision that found no protections for a recreational user since marijuana is still illegal under federal law. I addressed Colorado and Illinois’s “lawful product” problem in a previous article, and a bill like the one being considered in Colorado would largely fill that gap.

So what does all this mean for employers who aspire to maintain zero tolerance drug policies? Our advice has been for employers to start treating marijuana use more akin to how employers treat alcohol. Of course, there may be exceptions, say for employees in certain safety-sensitive positions or those subject to federally mandated testing procedures. But the days of blanket zero tolerance drug policies, at least for marijuana, may be behind us. Foley’s Labor & Employment Group, with the support of Foley’s Cannabis Law Team, is ready to help employers navigate this ever-evolving landscape.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.


Related Services