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Zero Tolerance for Zero Tolerance Marijuana Policies?

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. 

© 2020 Foley & Lardner LLP

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About this Author

Patrick J. McMahon, Foley, Dispute Resolution Lawyer, Contract Mergers Attorney
Associate

Patrick McMahon is an associate and litigation attorney with Foley & Lardner LLP. He is a member of the Business Litigation & Dispute Resolution Practice.

While in law school, Mr. McMahon worked as a summer associate at Foley where he reviewed information technology contracts for due diligence in mergers and acquisitions. Previously he was a summer associate for Niro, Haller & Niro, assisting their intellectual property practice. Mr. McMahon was also an extern for the Honorable Edmond Chang in the United States District Court for the...

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