For employers withoutfederal government contracts, evolving state laws present atremendous conflict and left to question whether they must followfederal or state law. (Photo: Bloomberg)

Conflicting marijuana laws at the state and federal level havecreated a confusing legal environment for employers. Few know howto set rules around employee use of the drug and protect themselvesfrom potential lawsuits. Even fewer know what the future holds fora booming marijuana industry, which is projected to reach nearly$150 billion in the next decade.

Today, 33 states and Washington, D.C. have some form oflegislation permitting the use of medical marijuana. These stateshave taken charge of writing their own laws, and each state lawcontains nuances that must be analyzed and understood by employerswho wish to avoid violating them.

Related: Legalization leads to more conversations, data onmarijuana use

While most states do not go as far as Colorado, Washington andCalifornia—which have legalized recreational marijuanause—challenges still exist for employers as they learn what theycan and cannot do when an employee discloses a medical marijuanaprescription. This is especially challenging for employers who havelocations in more than one state, since state medical marijuanalaws can vary greatly.

State laws also stand in complete contrast to the federalposition on medicinal marijuana use. According to federal law,marijuana is classified as a Schedule 1 substance (meaning it'sillegal for anything outside of research), and the FDA has notrecognized or approved the marijuana plant as medicine.

How does the federal-state divide add to confusion on marijuanausage?

It remains unclear whether or not the current White House willfollow the states which have acknowledged marijuana as medicine.President Trump has, at times, signaled he is willing to support amove toward the legalization of medical marijuana, which would be adeparture from the position of his former Attorney General, JeffSessions. In February, President Trump signed a federal spendingbill into law that contains a rider preventing the Department ofJustice from interfering in state medical marijuana laws. However,during this signing ceremony, the President made it clear that hereserves the right to ignore the cannabis provision in the spendingbill.

For any employer contracting with the federal government, therules are generally clear—no marijuana usage is allowed. But, foremployers without federal government contracts, evolving state lawspresent a tremendous conflict. Employers are left to questionwhether they must follow federal or state law.

Where does marijuana usage and employer-employee relationsstand?

Employers have historically been able to lean on federal laws toargue that marijuana is an illegal drug and, as a result, they werefree to issue blanket policies which prohibit employee use of thedrug. Recent decisions in state and federal courts across thecountry, however, suggest that employers are losing this argument.Courts are looking closely at the specific language of each statelaw—often ignoring or minimizing the impact of federal law on theanalysis—and finding that employers must accommodate medicalmarijuana use or change company drug testing policies to avoidpunishing employees for legal use of the drug.

In some instances, the courts are giving employees additionalprotection to use medical marijuana under state anti-discriminationlaws. This goes beyond any protections that may be outlined in astate's medical marijuana law. Specifically, courts that arelooking at anti-discrimination laws are finding that employerscannot discriminate against employees using medical marijuana onthe grounds that they are disabled; otherwise, why are theyprescribed the drug in the first place. In these states, if anindividual has a valid prescription for medical marijuana, for thepurpose of treating a disability, an employer may face liability ifthe employee is terminated or otherwise treated differently thanother non-disabled employees.

Favorable court decisions for employees using medical marijuana,and the threat of litigation alleging disability discrimination,has caused some employers to reevaluate which positions and jobresponsibilities within their organizations may be consideredsafety sensitive. If an employer can clearly show that a job issafety-sensitive, which requires careful analysis with the help oflegal counsel, action may be taken to remove an employee who isusing medical marijuana on the basis that they could beimpaired.

Employers must be careful when labeling a position assafety-sensitive, because they will surely be challenged to showthat a failure to safely perform the job poses a significant riskof harm to the health/safety of the employee or others around theemployee. Moreover, it remains difficult for employers to pin-pointwhen an employee may be impaired or under the influence when usingmarijuana outside of work hours. Drug testing is not currentlyreliable. Results can pick up marijuana that has been in theemployee's system for weeks.

Of course, each of the 33 states and Washington, D.C. that allowsome form of medical marijuana use vary on what's permitted andwho's allowed to claim marijuana usage to treat a disability.Defining what is a disability that can be treated by medicalmarijuana and what constitutes a reasonable threat to safety turnson the facts of each employee's situation and may be treateddifferently in each state. Also, testing for the drug to determinewhen an employee may be free from impairment is difficult. As such,it is recommended that employers get advice from legal counselbefore making any final decisions.

What does the future of marijuana look like for employers?

As earlier stated, the trend is moving toward protecting therights of employees to use marijuana as legitimate medicine. InBarbuto v. Advantage Sales and Marketing LLC (2017), the SupremeJudicial Court of Massachusetts broke from the line of precedentamong state and federal courts by allowing a medical marijuana userwith a valid prescription to pursue a claim for disabilitydiscrimination under state law after she was terminated for apositive drug test.

Other courts around the country have also sided with theemployee, with some finding that employers discriminated againstworkers when they terminated medical marijuana cardholders solelydue to a positive drug test.

If these rulings are any indication, state laws will continue toprotect individuals and their rights to use medical marijuana andstate courts will decide the fate of employers taking actionagainst employees using marijuana as medicine. Until technologyimproves to a point where it can be discovered whether a person isimpaired or under the influence of marijuana on the job, there willcontinue to be significant challenges for employers.

In the meantime, employers can no longer hide behind federal lawon this issue and ban the use of medical marijuana outright. Inorder to protect themselves from employee lawsuits, companies mustwork with legal counsel experienced in state-specific marijuanalaws to create new drug testing policies and marijuana usagepolicies that comply with these ever-evolving laws.

Jill Lashay is a Labor & Employmentattorney with Buchanan Ingersoll & Rooney and a member of thefirm's Cannabis Law Practice.

Read more: 

• Marijuana use among workers increasing, opioidsdecreasing
• The decline of the employment drugtest
• Focus on employee marijuana use shouldchange