The United States House of Representatives passed a Marijuana de-criminalization resolution.[1] Should employers panic?

Quick Summary

• Marijuana is not actually decriminalized; the resolution would need to be approved by the Senate and the president. Both are highly unlikely to approve the resolution.
• A great deal of employer rights regarding marijuana prohibition in the workplace depend on marijuana’s classification as a Schedule I substance on the Controlled Substances Act.
• Though not passed in this session, decriminalization may resurface and may even pass in 2022.

Unlikely to Pass

The first and most important aspect of this development is that the resolution will next go to the US Senate, currently controlled by Senate Republicans who have, by and large, vehemently opposed marijuana decriminalization. Most experts find it extremely unlikely, if not nearly impossible, for the bill to make it out of the Senate,[2] but if it did, the bill would need to be signed or vetoed by the president. President Donald Trump, however, has mustered a force against the war on drugs not seen since Nancy Reagan[3] and a veto would be guaranteed. Congress could overcome a veto but needs a two-thirds majority instead. Thus, this “win” is more of a symbolic win for the decriminalization movement rather than one that physically moves the needle.

How Does Marijuana’s Schedule I Classification Affect the Workplace?

Marijuana is currently listed as a Schedule I Controlled Substance under the Controlled Substances Act.[4] This means that, according to the DEA and the rest of the federal government, marijuana has a high potential for abuse, no accepted medical use in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.

However, not all cannabis products are illegal under federal law. For example, the 2018 Farm Bill legalized certain hemp products which contained a minimal concentration (0.3%) of tetrahydrocannabinol (THC), the psychoactive component of marijuana.[5] The other well-known cannabinoid (a naturally-occurring compound found in the cannabis sativa plant) is cannabidiol (CBD). The United States Food & Drug Administration (FDA) has approved a cannabis derivative product, Epidiolex (cannabidiol) and three cannabis-related products: Marinol (dronabinol), Syndros (dronabinol), and Cesamet (nabilone); however, these must be obtained by prescription and have limited application.[6]

Despite the overall ban on marijuana and marijuana products, states have been pushing for legalization for medical and recreational use for decades with mixed results. For example, California legalized marijuana for medical use in 1996 through Proposition 215, but the Controlled Substances Act presented even lawfully prescribed users of marijuana with the looming threat of arrest and criminal penalties. In 2005 the United States Supreme Court upheld a challenge to the Controlled Substances Act as applied to these California patients on the ground that it was a lawful exercise of Congressional authority under the United States Constitution’s Commerce Clause.[7]

Since the Supreme Court’s decision in Gonzales v. Raich, several state legislatures and courts have relied on marijuana’s classification as a Schedule I substance to justify workplace drug testing policies which allow employers to take adverse action against employees who test positive for marijuana despite legal prescription under state law or legal use under state recreational marijuana law.[8] However, even this trend is waning. For example, Delaware’s state law prohibits employers from taking adverse action against employees who test positive for marijuana when lawfully prescribed under state law.[9]

Could Federal Marijuana Decriminalization Pass in the Future?

Public support for legalization of marijuana, particularly for medical use, abounds. Democratic presidential candidate Joe Biden campaigned in favor of decriminalizing marijuana and would be expected to sign into law any decriminalization legislation that came across his desk. The issue remains whether it would make it that far.

Republican politicians raise valid concerns over public safety, particularly in the transportation arena. Opponents of decriminalization also argue that legalization will create a slippery-slope, both with marijuana’s categorization as a “gateway” drug and with the ostensibly inevitable legalization/decriminalization of other, “harder” drugs. While the slippery slope argument is denounced as a logical fallacy, opponents may now point to Oregon as proof of concept. Oregon recently passed a controversial ballot measure decriminalizing several “hard” drugs like heroin and cocaine, opting instead for health assessments and treatment programs over incarceration and criminal penalties.[10]

Democratic politicians, on the other hand, argue that state marijuana legalization has created a lucrative commercial market of which minorities are by and large not receiving benefit.[11] Meanwhile, according to proponents, minorities continue to be disproportionately impacted by the criminalization of marijuana.[12]

For a bill to pass both the House of Representatives and the Senate, it would likely need to balance the interests of public safety and workplace safety while decriminalizing marijuana and providing a path to rectify the disproportionate effects of marijuana criminalization, such as providing a means to expunge marijuana convictions from records. In all likelihood, Republicans will maintain control of the Senate until at least November of 2022. If Democrats manage to regain control of the Senate in 2022, decriminalization will inevitably return to the Congress—with a strong chance of success.

How Would Federal Decriminalization Change the Workplace?

This question is incredibly difficult to answer as much of the effects will need to play out in both the state legislatures and the courts. All employers, however, will likely be affected almost immediately under the Americans with Disabilities Act (ADA). The ADA does not explicitly protect medicinal marijuana users, but case precedent like the case of James v. City of Costa Mesa heavily rely on marijuana’s placement on Schedule I of the Controlled Substances Act to justify an employer’s refusal to accommodate prescribed marijuana use in the workplace.[13] Thus, that reasoning immediately fails once marijuana is removed from Schedule I of the Controlled Substances Act. This then would create a conflict between the ADA, federal law, and most state medical marijuana laws which, unlike South Dakota and Delaware, do not require an employer to accommodate an employee’s use of medical marijuana.[14] This would be a question of preemption and would likely turn on the language of the enacting legislation, which, hopefully would address preemption.

Federal drug testing laws imposed on private employers based on a valid exercise of congressional authority (such as the Commerce Clause under United States Department of Transportation drug and alcohol testing regulations[15]), will likely remain mostly unchanged. Since operating in a safety-sensitive position under the influence creates a risk of harm, marijuana use will still be prohibited. Instead, a valid medical marijuana prescription would necessitate transfer to non-safety-sensitive functions. Whether an employer could refuse to hire or fire a federally-regulated (also known as “covered”) employee for a drug test positive for marijuana would depend on the ADA, subsequent DOT regulations, and potentially state law.

References:

[1] H.R. 3884 (MORE Act of 2019) (passed on Dec. 4, 2020). [2] See John Parkinson “House cotes to federally decriminalize marijuana” ABC News. (Dec. 4, 2020). [3] See generally, “Ending America’s Opioid Crisis” The White House (https://www.whitehouse.gov/opioids/ last accessed Dec. 4, 2020). [4] See 21 U.S.C. § 811 et seq. [5] 2018 Farm Bill, PL 115-334. [6] “FDA and Cannabis: Research and Drug Approval Process” United States Food & Drug Administration (Current as of October 1, 2020). https://www.fda.gov/news-events/public-health-focus/fda-and-cannabis-research-and-drug-approval-process. [7] See Gonzales v. Raich, 545 U.S. 1 (2005). [8] See, e.g., Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011) (finding that, despite an employee’s possession of a medical marijuana card under state law, the employer validly denied unemployment benefits as a violation of the drug-free workplace policy); Ross v. Ragingwire Telecommunications Co., 70 Cal. Rptr. 3d 382 (Cal. 2008) (employee with a valid medical marijuana card was denied employment; the court found that no state law can completely legalize marijuana because it is still illegal under federal law and thus the employer does not have to make accommodations for the use of illegal drugs). [9] Del. Code Ann. tit. 16, § 4905A(a)(3) (West) (prohibiting an employer from discharging or refusing to hire an individual solely because of medical marijuana cardholder status or positive marijuana test results for cardholders); see also, South Dakota Initiated Measure 26, § 23 (2020) (conferring the same protections as a similarly situated patient validly prescribed other substances for treatment, essentially making termination or refusal to hire decisions based on medical marijuana use a potentially discriminatory act based on disability under state law). [10] See Oregon Measure 110 (2020); see generally, https://drugtestingcourses.com/drug-2020-voter-initiatives/ . [11] See H.R. 3884, Sec. 2. [12] Id. [13] See James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012). [14] See, e.g., Arizona Proposition 207, Section 36-2851 (protecting an employer’s existing right to conduct tests for marijuana including in pre-employment scenarios). [15] 49 C.F.R. § 40.