The legal landscape for marijuana use is evolving and complicated by regulation at the federal, state and local government level. Recent developments can significantly impact hiring and employment practices. Companies that don't adjust their HR policies and operations to reflect relevant changes may be exposed to increased legal liabilities.
Saru Matambanadzo, the senior director of online legal education and Moise S. Steeg Associate Professor of Law at Tulane University School of Law, offered insights into the changing landscape during an October 2022 presentation for potential students in the online Master of Jurisprudence in Labor & Employment Law (MJ-LEL). Find out more about these developments here.
Federal Law Currently Prohibits Marijuana Use
Marijuana is currently classified by federal law as a Schedule I drug, along with heroin, ecstasy, LSD and peyote. Schedule I drugs are defined as having "no currently accepted medical use and a high potential for abuse." Possession, cultivation and sale of marijuana and the paraphernalia associated with it are banned under federal law.1
Historical Perspective on Federal Marijuana Law
Dr. Matambanadzo began with a brief historical review, noting, "Understanding the history of criminalization is important." Going back to the Marihuana Tax Act of 1937, possession of marijuana was restricted and heavily taxed. It was only in 1971 that marijuana was classified as a dangerously addictive drug, in spite of the lack of evidence supporting the classification.
Criminalization Was Racially and Politically Motivated
Matambanadzo noted that both the Tax Act and the 1971 Controlled Substance Act were racially motivated. She cited John Ehlrichman's interview for "Harper's Magazine" in 2016 in showing the racial and political motivations for President Nixon's War on Drugs. Ehrlichman was an aide to Nixon, who later served prison time for the role he played in the Watergate scandal.
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”2
That 1971 law still stands, although there is discretion in enforcing it, and there have been three distinctly different attitudes about it in the White House over the past decade. The Obama Justice Department allowed Colorado and Washington to move ahead with marijuana regulation and taxation while it focused federal efforts away from individual users, but didn't take any steps to change federal laws.
President Trump's attorney general reversed Obama's policies and threatened to target Colorado and Washington in enforcement efforts. Most recently, President Biden said during his campaign he would move forward with decriminalization and has since pardoned people convicted for possession.
Federal Decriminalization Legislation Is Pending
In April 2022, the U.S. House of Representatives passed H.R. 3617, dubbed the MORE Act. With the full title of the Marijuana Opportunity Reinvestment and Expungement Act, the bill will decriminalize marijuana--which it refers to as cannabis--at the federal level and set up a framework for taxation and economic reporting. The bill "directs the National Institute for Occupational Safety and Health to study the impact of state legalization of recreational cannabis on the workplace," among other things. The Senate has yet to act on the bill.3
State Laws Regarding Marijuana Vary
Turning to state legislation, Dr. Matambanadzo noted that given the number of state laws regarding marijuana use, it would be difficult for the federal government to preempt them. Further, "Decriminalization has the momentum," she said.
As of October 2022, only four U.S. States completely criminalize marijuana. Thirty seven states allow medical marijuana use and nineteen allow recreational marijuana. But the landscape is uneven and human resources professionals need to be very clear about which laws apply to their organizations. "I want to remind you of a reality," Matambanadzo said, "States are a patchwork, and this is one of the things we really highlight in the program. My shorthand is, always check your state and local laws."4
How Do Regulatory Changes Affect Employer Drug Testing?
"We know that by default, and we talk about this in my employment law class, absent any legislation to the contrary, employers can adopt drug testing regimes. Historically employers have had a wide latitude to engage in drug testing, but there's a number of things to consider."
Noting that circumstances differ from job to job and industry to industry, Professor Matambanadzo outlined three realms for drug testing:
- Mandatory drug testing
- Permissible drug testing
- Impermissible drug testing, an emerging regime
When Drug Testing Is Required
Safety-sensitive agencies of the federal government require drug and alcohol testing, including the Departments of Transportation and Defense and the Nuclear Regulatory Commission. Likewise, 42 U.S. Code Section 102 requires drug tests for certain federal contractor jobs. Some states also require drug testing job applicants for law enforcement and first responder jobs.
Private sector jobs that require workplace drug testing programs include airline flight crews, railroad workers and drivers of commercially licensed vehicles. A drug testing policy typically includes pre-employment drug testing, testing for substance abuse on reasonable suspicion of use after an accident, and when there's a return to work.
Care in the implementation of these policies is required. The Occupational Safety and Health Administration, for example, prohibits the use of drug testing to penalize an employee who has reported a workplace injury. A thoughtfully formulated and administered policy will take all relevant regulations into consideration.
When Drug Tests Are Permitted
Most private employers are in the realm where drug testing is permitted rather than required. However, "You may have cultural issues. In many, many industries, it would be, shall we say, inadvisable to test your talents. You may be able to do so, but honestly, you don't want to. You don't want to know," Dr. Matambanadzo said while highlighting the chilling effect a drug testing program would have in industries including technology, culture and academia.
When Drug Testing Will Not Be Permitted
She predicted there will soon be a time when employers are not allowed to conduct workplace drug testing, for a variety of reasons. Noting that the state of Oregon has decriminalized all drug use, she said legal developments could include:
- Disability accommodation for medical marijuana use
- Accommodation for religious use of marijuana or other drugs
- Anti-discrimination laws for recreational marijuana use
Sixteen states already have anti-discrimination protections for medical marijuana users, and that means employers can't test for marijuana. In addition, there is existing case law in Connecticut, New Jersey, Massachusetts and Rhode Island supporting protection via the Americans with Disabilities Act. There are also a half-dozen states that prohibit employment discrimination against recreational marijuana users.
"No matter what the legal landscape later brings, It's my opinion that there's always going to be limitations on medical and recreational marijuana use, particularly on those individuals whose jobs involve health or safety. Employers can always prohibit the use of marijuana on the job," she concluded.
Saru Matambanadzo is a nationally known authority on gender equality and workplace equity whose scholarship examines modern challenges in the workplace through the lenses of critical race theory, feminist legal theory, and LatCrit theory. She earned a JD from Harvard Law School and a PhD in women’s studies from UCLA.
Professor Matambanadzo has served as the chair of the American Association of Law Schools Section on Sexual Orientation and Gender Identity Issues and as a founding board member for ClassCrits.org. She currently serves on the board of LatCrit.org. She joined the Tulane Law faculty in 2010 and teaches employment, law and sex and gender discrimination in Tulane's online MJ-LEL program.
Become a Visionary HR Leader with Tulane's MJ-LELDesigned specifically for HR professionals, Tulane's online MJ-LEL program gives you the law-based skills and expertise you can put right to use in the workplace. Matambanadzo and her faculty colleagues prepare you to be a pathfinder in a shifting legal landscape, giving you the skills to translate the law and serve as a frontline policymaker for your organization. Learn more about how Tulane's online MJ-LEL can propel your career.
- Retrieved on December 13, 2022, from dea.gov/drug-information/drug-scheduling
- Retrieved on December 13, 2022, from harpers.org/archive/2016/04/legalize-it-all/
- Retrieved on December 13, 2022, from congress.gov/bill/117th-congress/house-bill/3617
- Retrieved on December 13, 2022, from reuters.com/world/us/legal-cannabis-poses-quandary-us-companies-screening-staff-drugs-2022-10-06/