5 State Marijuana Mandates Throwing Employers For A Loop

November 25, 2019Media Mention

As more states have legalized marijuana for recreational and medical purposes, employers have had to navigate a hodgepodge of different rules as they reevaluate long-standing workplace drug policies and assess their obligation to accommodate disabled workers.

While marijuana remains a Schedule I controlled substance on the federal level on par with heroin and LSD — substances the government considers to have no accepted medical use and a high potential for abuse — several dozen states have legalized it in some form.

But states and some local municipalities have enacted a wide range of rules and regulations themselves, leaving employers scratching their heads in figuring out how to deal with ever-increasing numbers of workers who legally use marijuana and with complying with rules that can vary wildly across jurisdictions.

Wendy Lane, chair of Greenberg Glusker LLP's employment practice, said there is a growing gap between longtime company leaders who are "entrenched" in a zero-tolerance mindset and entry-level employees who "don't get what the fuss is about" and sometimes don't realize that marijuana use can be disqualifying.

"What we're seeing on the creative side, companies that are startups [and] companies that are in the creative space, is that some of the best candidates are being eliminated because they're testing positive," Lane said. "And they don't want to work for a company that has a very buttoned-up [approach toward] what they perceive to be a necessary policy toward a drug that [prospective employees] perceive to be legal because recreational use is legal in whatever state they are in."

Cannabis Industry-Specific Rules

Although discussions about marijuana laws in the employment context generally revolve around businesses' attempts to cope with changing mandates, Priya Sopori of Greenberg Glusker points out that those issues can be even more acute for companies in the heavily regulated but rapidly growing cannabis industry.

Those companies can face regulations in a wide range of areas such as taxes, real estate or the way certain employees are classified, according to Sopori, who heads her firm's cannabis practice group.

One example is that companies in the cannabis sector in California that employ delivery drivers must classify them as employees whereas drivers in other industries could be deemed independent contractors.

"There are a number of California laws that already limit an employer's ability to classify employees and/or independent contractors, which is a completely separate issue and applicable to California companies across the board," Sopori said. "That aside, cannabis companies' delivery drivers must be employees of the company itself."

Originally published in Law360, November 25, 2019