The 2014 midterm elections did more than just make paid sick leave benefits mandatory and increase minimum wage; ballot measures also approved recreational use of marijuana in various states and regions.

Despite marijuana remaining an illegal drug under Schedule I of the federal Controlled Substance Act, Alaska, Oregon and the District of Columbia joined Colorado and Washington as legally allowing for the recreational use of the drug. For employers, these new state laws likely won’t have big implications, although they may want to review their workplace policies, say legal experts.

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“Especially in the case of recreational marijuana, employers can continue to take the position that it is an illegal drug under federal law,” explains Dale L. Deitchler, a shareholder in Littler Mendelson’s Minneapolis office. “Ultimately if there are legal challenges, a review in court will side with employers in terms of the ability to take adverse action following a positive marijuana test under a drug testing policy.”

It wouldn’t hurt to initiate a policy review, either, according to Deitchler, who represents management in all phases of labor law, labor relations and standards. “It would be prudent to at least review policies, particularly definitions relating to illegal drugs because they may be so broad,” he says, that they may “allow or permit something that is lawful under state law

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In Alaska, Ballot Measure 2 passed with 53.2% of the vote; 55.9% of Oregon voters approved State Ballot Measure No. 91, and Washington, D.C. saw 64.9% of its voters support Initiative #71. Only Alaska and Oregon will elicit production and sales of the drug – along with regulation by newly created or already established boards.

But, according to Deitchler, there are situations where these newly established laws may create employer headaches. Cases involving “lawful consumable products” statutes, or products whose use is lawful and which are consumed during private use or enjoyment, may begin to pop up.

“Those are statutes that basically say that an employer cannot take adverse action based on lawful off-duty conduct or consumption of a lawful product,” but he adds employment lawyers “believe that illegality of marijuana under federal law will continue to trump any application of those state laws.”

Meanwhile, if marijuana does ever become legal at the federal level, Deitchler explains  that this will “change the game” on how employers and their counsel can approach cases of positive marijuana drug testing. He says that current advice “hinges of illegality of marijuana at the federal level.”

Another area where HR and benefit managers should tread lightly is when discussing or reviewing usage of medical marijuana among employees. Medical marijuana is now allowed by 23 states, D.C. and Guam, according to the National Conference of State Legislatures. Typically, these states require patients to register. But according to Deitchler, employers in these jurisdictions should be careful that they don’t violate the Americans with Disabilities Act.

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“Employers always need to keep in mind that, even if it’s medical marijuana, engaging in the interactive dialogue to see if there is a possible reason for accommodation [is important],” says Deitchler. 

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