In two (2) Wessels Sherman Client Alerts (August, 2015 and December, 2015) I wrote articles about the expansion of Medical Marijuana usage and its authorization in then twenty-three (23) States (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia) and also the fact that there were four (4) States that permitted the “recreational use” of Marijuana that also allowed Medical Marijuana (Alaska, Colorado, Oregon, and Washington). With the past Election of November 8, 2016, that list of States is rapidly expanding.

In point of fact, four (4) additional States (Arkansas, Florida, Montana, and North Dakota) have just approved the use of Medical Marijuana initiative and an additional five (5) States that had previously approved Medical Marijuana (Arizona, California, Maine, Massachusetts and Nevada) have now approved the “recreational use” of Marijuana. As the title of the article indicates, the “branches” of the Marijuana plant are certainly growing!

It is quite clear that after the Election of 2016, approximately a quarter of the United States population now lives in States where adult use of Marijuana is legal. Surprisingly, only one (1) State that has approved Marijuana for medical use – Arizona – rejected the recreational use of Marijuana by a vote of 52% to 48%. It is the author’s opinion that at the next Election Cycle, it is very probable that Arizona will join the parade authorizing “recreational use”.

With the rapid expanse in the use of Medical Marijuana in now twenty-seven (27) States and the District of Columbia, and the fact that recreational use is now acceptable in seven (7) States, it makes the current dichotomy between Federal and State Law (Marijuana is still prohibited by Federal Statute) not only impractical but untenable. In point of fact, under the Obama Administration, Federal Authorities largely took a “hands off policy” in enforcement of Marijuana Laws in States where Medical Marijuana had been approved. What the Trump Administration will do is still open to question, but somehow this “cross purposes” issue must end!

Regardless of the machinations on the Federal level, Employers are still facing an ever-growing dilemma in how to deal with the individual Employee who is using Marijuana for medicinal purposes. Certainly, an individual, who is a Medical Marijuana user, could not be refused to be considered for employment or terminated because he is a Medical Marijuana user. Also, in point of fact, it is conceivable that the Medical Marijuana using Employee’s underlying medical condition – the reason that they are using Medical Marijuana – could be codified as a disability under the Americans with Disabilities Act. It is interesting to note that if one were to review all the individual State Laws with regard to Medical Marijuana, there are at least five (5) chronic conditions that are listed in all of them (cancer, epilepsy, multiple sclerosis, HIV/AIDS, and “chronic pain”). At least four (4) of the listed five (5) accepted conditions in all of the States would clearly qualify as a disability and, in some cases, maybe even “chronic pain” could qualify. Obviously, Employers have to exercise great care to not trip over this Legal Liability issue.

Rather than waiting for the “shoe to fall”, Employers must take proactive steps to insure compliance with these Marijuana Laws to avoid big problems:

1. Absolutely review your Company Policies and Philosophy toward Marijuana and other controlled substances in the workplace and assure that Managers and Supervisors understand those issues.

2. Before disciplining an Employee under a No-Tolerance Drug Policy for Marijuana use, if that Employee is in a Medical Marijuana state or recreational use of Marijuana state, request the involved Employee to provide an explanation of their situation so that comprehensive data is available before a discipline and/or termination situation occurs.

3. Make sure that Job Descriptions are updated to identify the essential job responsibilities and whether or not some of these job responsibilities are safety sensitive.

4. Update all Handbooks and Manuals to reflect the current and correct Legal Policy with regard to drug testing, workplace searches and disability.

There is no doubt in the mind of the author that the “Marijuana Plant” will continue to grow and expose Employers to even greater Legal Liability.

Questions? Contact Attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com