U.S. Attorney General Jeff Sessions’ action rescinding an Obama administration policy on marijuana enforcement may signal a tougher stance against the substance, but it isn’t expected to have a major impact on employers.
On January 4, Sessions rescinded the “Cole memo,” which was issued by then-Deputy Attorney General James Cole in 2013. The memo told federal prosecutors to focus their enforcement efforts against organizations trafficking drugs to children, engaging in violence, or selling pot in states where it remains illegal.
States that legalized marijuana and enacted regulations regarding its use were less of a threat, according to Cole. Therefore, he wanted to leave enforcement to local authorities instead of federal prosecutors.
The new word from Sessions directs U.S. attorneys to enforce federal law related to marijuana and “to follow well-established principles when pursuing prosecutions related to marijuana activities,” according to a statement from the U.S. Department of Justice.
Meaning for Employers
More than two dozen states have laws allowing either medical or recreational use of marijuana. On January 1, California became the latest state to allow the sale of recreational marijuana. But that doesn’t mean employers have to accommodate employees who use it, according to Mark I. Schickman, an editor of California Employment Law Letter and attorney with Freeland Cooper & Foreman LLP in San Francisco.
Proposition 64, which created the California law allowing the sale and taxation of recreational marijuana, states that public and private employers are allowed “to maintain a drug and alcohol free workplace,” and the law does not require employers “to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace.”
The law also does not “affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
Schickman says the state’s law means employers that want to bar employees who test positive for marijuana may do so, with or without the new federal policy. He also points out that under the California Supreme Court case Ross v. RagingWire Telecommunications, employers have the right not to hire pot users because they violate federal law.
Employers’ biggest problem, Schickman says, is that there is no way to test whether an employee is working under the influence of marijuana. An employee who smoked pot days before may still test positive. “So the focus has to be on observing, documenting and acting on performance and deficiencies, and sometimes that is tough,” he says.
Employers in other states with marijuana laws that differ from federal law face similar dilemmas. Arizona is one example. The new policy from Sessions “changes nothing in Arizona, because state law still prohibits employment discrimination against those with state authorization to use or possess medical marijuana,” says Dinita L. James, an editor of Arizona Employment Law Letter and attorney with Gonzalez Law, LLC, in Tempe, Arizona.
On how federal enforcement affects employers, James says federal law enforcement resources are “way too limited to have much of an impact one way or the other.” She says unless the FBI “starts raiding dispensaries and cultivation facilities and arresting their owners and operators, medical marijuana will remain available and employers will need to treat it as they would any other prescription drug. That means focusing on whether the employee works in a safety-sensitive position and following the policies and practices it has adopted to ensure against on-the-job impairment.”
Peter D. Lowe, an editor of Maine Employment Law Letter and attorney with Brann & Isaacson in Lewiston, Maine, says he doesn’t see any immediate changes for Maine employers as a result of Sessions’ action. He says most employers don’t permit marijuana use or possession at work.
While Sessions’ announcement retracts the special status of marijuana for federal prosecutors, Lowe says he’d be surprised if prosecutors use scarce resources to prosecute individuals who use medical marijuana and, to a lesser extent, people who use recreational marijuana.
The rescission of the Cole memo and other guidance from the Justice Department “just reinforces the chasm” between federal and state law, Lowe says. “Employers want certainty, and many are very troubled by the conflicting messages—namely, that marijuana possession and use is a federal crime [even though] employers also may face liability under state marijuana and disability laws for failing to accommodate an employee’s use of marijuana.”
Recent case law from New England “has been favorable to applicants and employees who use medical marijuana,” Lowe says. “This creates the impression for employers with zero-tolerance drug policies that they are caught between a rock and a hard place. My advice for employers is that they should continue to comply with state laws regarding medical and recreational marijuana use by employees.”
What About Arrests?
Employers may wonder how to react if an employee is arrested on a marijuana charge. Lowe says he would advise an employer “to gather all the facts relating to the criminal charges and make an assessment [of] whether or not the pending criminal charges warrant either administrative leave or termination.”
If the charges are related to just the employee’s possession or use, he says the employer may allow the employee to continue to work “provided any fitness for duty questions are addressed.”
“If the charges are more serious, such as allegations that the employee is involved in a criminal conspiracy to distribute marijuana, then . . . more serious action may be appropriate,” Lowe says.