January 28, 2020

January 28, 2020

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January 27, 2020

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Occupations Governed by Federal Regulation Remain Guarded Against State Medical Marijuana Non-Discrimination Laws

A growing number of states have passed anti-discrimination laws pertaining to medical marijuana use. While medical marijuana is becoming widely legalized under state law, marijuana and its most identifiable active chemical, THC, remain listed as Schedule I drugs under the federal Controlled Substances Act. Still, the legalized marijuana market, and the science behind the research and development of new products, has come a long way. The marijuana industry now mass produces widely available extracts, oils, and edible products all with varying potency. Unfortunately, state laws pertaining to the use of marijuana and THC-based products are under-developed, vary from state-to-state, often conflict, and are subject to a great deal of misinformation, especially on social media. This rapid market development combined with the lack of clear guidance is fertile ground for unintentional violations of law by employees and employers alike.

Federal Regulations May Prohibit Marijuana Use in States Where Legal

One area where employees and employers should be particularly mindful is with respect to positions that are regulated according to federal law. These positions usually involve federal money, federal contractors, and safety sensitive positions that cross state lines. For example, the Federal Motor Carrier Safety Administration (FMCSA) regulates interstate commercial trucking. The FMCSA and the U.S. Department of Transportation have published guidance stating “a person is not physically qualified to drive a [Commercial Motor Vehicle] if he or she uses any Schedule I controlled substance such as marijuana.” 49 CFR §§ 391.11(b)(4) and 391.41(b)(12)) (emphasis added). In other words, even if an employer is based in a state where medical marijuana is medicinally and recreationally legal under state law, federal regulation may prohibit employees from using marijuana products if they drive commercial motor vehicles or engage in other federally regulated professions.

Occupation Specific Prohibition in Recreationally Legal State

Some occupations outright ban the use of marijuana for particular occupations as a matter of state law, regardless of whether other state law permits medicinal or recreational marijuana use. Recently, a Nevada driver sued his employer after the taxi company discovered that he routinely used marijuana products and terminated his employment. The plaintiff alleged that he was using marijuana to treat a medical condition. Nevada has legalized marijuana for medicinal and recreational purposes. Nevada’s statutes also prohibits a Nevada employer from discriminating against an employee for the lawful use of any product while not on employer time. Notwithstanding these state laws, Nevada’s Legislature also adopted FMCSA drug-use regulations specifically for taxicab motor carriers. That meant that even though marijuana is lawful in Nevada, state law also prohibited any person from operating a taxicab while using marijuana, even off-the-clock.

Employers Across Multiple Industries Are Effected

Some effected industries include transportation, energy, defense, and federal contracting. To make things even more confusing, these prohibitions could also differ from state to state. Also, if an occupation involves the handling, use, transfer, or sale of firearms, those professions may too be off limits to medical marijuana users according to a recent letter from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF). Moreover, even if some of the earliest adopting states permit employers to regulate marijuana use in the workplace, these prohibitions naturally implicate federal and state drug testing laws as well.



Jackson Lewis P.C. © 2020


About this Author

Lisa A. McClane, Employment Litigator, Jackson Lewis Law firm
Of Counsel

Lisa A. McClane is Of Counsel in the Las Vegas, Nevada, office of Jackson Lewis P.C. Her practice covers the spectrum of employment litigation, including both state and federal claims.

Ms. McClane has experience advocating for corporate clients and public employers in state and federal court proceedings, arbitrations, mediations and before governmental agencies including the EEOC, NERC, DETR and DOL. She has handled cases involving claims of race, age, disability, religious and sex discrimination, as well as sexual harassment, retaliation, wage...

Donald P. Paradiso Jackson Lewis Las Vegas Class Action Complex Litigation Employment Litigation

Donald (Don) P. Paradiso is an Associate in the Las Vegas, Nevada, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including complex class action litigation, wage/hour cases, discrimination matters, and providing advice and counsel.

Mr. Paradiso has achieved victories for clients at every judicial level in the Ninth Circuit, including published case law from the Ninth Circuit Court of Appeals. Mr. Paradiso has experience appearing before judicial departments, administrative law judges, and has first chair trial experience. While attending law school, Mr. Paradiso was a Senior Editor on the Penn State International Law Review, where his article on international piracy, maritime law, and its impact on global shipping was selected for publication. Mr. Paradiso was also a member of a four-person team competing in the prestigious Willem C. Vis Commercial Arbitration Moot in Vienna, Austria.

Prior to joining Jackson Lewis, Mr. Paradiso served as counsel at a national firm focusing on commercial litigation and employment matters. He was also law clerk for the Honorable Vincent Ochoa in the Eighth Judicial District Court.