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Legal Intersection – A Look at Legalized Marijuana in the Workplace

Although not new, Legal Intersection is becoming more well known and embraced, thanks to Ms. Kimberle Crenshaw, who pioneered the term ‘intersectionality’, defining the injustice black women face in the workplace, where discrimination occurs because of two (or more) laws overriding one another, causing a gap where, ‘because of this, this happens’. For many business owners, employers, and human resource professionals, legal intersection isn’t new at all, but a weekly (often daily) occurrence of balancing conflicting laws, determining which law(s) are primary, and which laws to apply secondary.


For employers who operate in jurisdictions where recreational marijuana is legal, this can be a difficult topic to navigate between municipal, State, and Federal regulations, as many are often in intersect with one another causing confusion, frustration, and at times, decision paralysis as which direction to take may seem overwhelming. We’ll take a quick look into the Top Six Things to know before implementing a drug policy around marijuana at work.


Number One – Is recreational marijuana use legal? No? Yes? Maybe? Federally, marijuana use (recreationally or with a medical card) is not legal (Drugs of Abuse, A DEA Resource Guide (2020 Edition), 2020). However, in 19 states (21 including Washington D.C., and Guam) recreational marijuana use is legal (Hansen, Alas, & Davis, Jr., 2022). The intersecting result is, perhaps recreational marijuana use is legal.


Number Two – Does your business operate in a marijuana friendly jurisdiction? As mentioned above, nineteen states (and Washington, D.C., and Guam) allow some form of recreational marijuana use (Hansen, Alas, & Davis, Jr., 2022). As the tide continues to turn towards more marijuana friendly jurisdictions, the need for business owners, operators, and human resources professionals to remain vigilant on current acceptance is essential. Legislation changes rapidly regarding marijuana, and it remains paramount for employers to be aware of current and pending changes to remain compliant. Last month, California announced the signage of AB 2188, which grants California citizens further protections for marijuana use, prohibiting positive marijuana test discrimination (for off-duty use) unless required by federal law (Leidner & Delogu, 2023) regarding employment (and some housing considerations).


Number Three – Does your business operate in the Federal sector such as a Federal Contractor, or comply with DOT, FAA, or any other Federal program? If yes, then recreational marijuana is probably not legal for your employees. Federal contractors are still required to promote and maintain a ‘Drug Free Workplace’ with a company policy, statement, and signage (Labor, 1990). For employers under DOT/FAA or other regulated programs with required pre-employment, post-incident, and random drug testing, marijuana use is strictly prohibited. These employers may lose critical federal programs due to repeated drug use, and test failure by employees.


Number Four – Where to look first? First, determine if your state is marijuana friendly or not. If it is not, maintain a pulse on local legislation to see if your municipality, local jurisdiction, and/or State is looking to change soon. Next, review your federal contract requirements to determine if you are contractually required to maintain a drug-free environment.


Number Five -Contact your attorney. As laws continue to evolve, it is important to review your policy for the latest changes. As mentioned above, effective January 2024, California’s new laws go into effect, with even broader protection for employees. However, California is not alone as Washington State has also proposed legislation (SB 5517) to prohibit positive marijuana testing discrimination (Hillemann, 2022). Both AB 2188 and SB 5517 continue to recognize the far-reaching arm of Federal programs and continues to recognize Federal laws and their primary jurisdiction in these incidences.


Number Six – read, ‘Legal Intersection: When Employment Laws Collide and Contradict One Another’ for further in-depth discussion around Legal Intersection and employer considerations (attached here for review).


References

Drugs of Abuse, A DEA Resource Guide (2020 Edition). (2020). Retrieved from www.dea.gov: https://www.dea.gov/sites/default/files/2021-12/Trafficking%20Penalties.pdf

Hansen, C., Alas, H., & Davis, Jr., E. (2022, November 9). Where Is Marijuana Legal? A Guide to Marijuana Legalization. Retrieved from www.usnews.com: https://www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization

Hillemann, B. (2022, January 20). Proposed Washington law would end employment tests for marijuana use. Retrieved from www.thereflector.com: https://www.thereflector.com/stories/proposed-washington-law-would-end-employment-tests-for-marijuana-use,282987

Labor, U. D. (1990, October 16). Drug-Free Workplace Regulatory Requirements. Retrieved from oui.doleta.gov: https://oui.doleta.gov/dmstree/tein/tein_pre93/tein_15-90.htm#:~:text=On%20November%2018%2C%201988%2C%20Congress,agency%20after%20March%2018%2C%201989.

Leidner, T. R., & Delogu, N. N. (2023, October 3). California to Protect Off-Work Use of Marijuana, Set Testing Parameters for Measuring Workplace Impairment. Retrieved from wwwl.ittler.com: https://www.littler.com/publication-press/publication/california-protect-work-use-marijuana-set-testing-parameters-measuring




Legal Intersection – A Look at Legalized Marijuana in the Workplace © 2022 by Shellene M. Cook is licensed under CC BY-SA 4.0. To view a copy of this license, visit http://creativecommons.org/licenses/by-sa/4.0/

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