In recent years, approximately eleven states and the District of Columbia have decriminalized the use of small amounts of marijuana for recreational purposes, as well as the use of cannabidiol (CBD), one of marijuana’s active ingredients. During the November 3, 2020 election, several more states continued this trend by passing ballot initiatives decriminalizing small-scale recreational marijuana use. However, because marijuana use remains illegal under federal law, the growing patchwork of state and local legalization initiatives present complicated questions for employers regarding how to address marijuana usage by employees.
This Alert analyzes common questions regarding current federal enforcement practices, the extent to which employers may prohibit employee off-premises or off-duty medical marijuana use, and whether employers must accommodate employees who are prescribed marijuana for medical purposes.
DiscussionFederal Criminal Law and the Current Federal Enforcement Practices
Marijuana remains a Schedule I controlled substance under the Controlled Substances Act (CSA), see 21 U.S.C. §§ 841(a)(1), 844(a), meaning that, with limited exceptions, its manufacture, distribution, and possession is a federal crime. The CSA takes precedence over state and local statutes to the contrary, so that marijuana producers and users may be charged with a federal offense even in states that have legalized those activities. In Gonzales v. Raich, 545 US 1 (2005), the United States Supreme Court held that the enacting the CSA was a lawful exercise of Congress’s commerce power that, under the Constitution’s Supremacy Clause, prevails over state statutes legalizing medical marijuana.
Marijuana enforcement at the federal level has remained in flux since Gonzales. In 2013, the Obama Administration’s Department of Justice issued a guidance memorandum instructing federal law enforcement agencies and prosecutors to focus their limited enforcement resources on marijuana-related activity that implicates strong federal interests, such as preventing marijuana revenue from going to criminal enterprises and cartels, and diverting enforcement activity from states in which it is legal under state law to states in which it is not. The memorandum recommended that “state and local law enforcement and regulatory bodies should remain the primary means of addressing” localized, small-scale marijuana use by individuals, particularly in states where marijuana use is legal to some extent. See James M. Cole, Deputy Attorney General, Memorandum for All United States Attorneys re: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013).
In January 2018, Attorney General Jeff B. Sessions issued new guidance, rescinding the 2013 memorandum and signaling that future prosecution decisions would be left to the US Attorneys. Specifically, the new guidance states that it is unnecessary to establish enforcement policies specific to marijuana-related activity; rather, federal prosecutors should exercise their discretion in accordance with “the well-established principles that govern all federal prosecutions,” and make enforcement decisions based on federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community. Despite this change in Department of Justice policy, however, federal marijuana prosecutions have continued to decline since they peaked in 2012. See Jefferson B. Sessions, Attorney General, Memorandum for All United States Attorneys re: Marijuana Enforcement (Jan. 4, 2018).
The federal government has taken a different approach regarding certain products containing CBD than it did with respect to marijuana. In 2019, the federal Drug Enforcement Agency (DEA) announced that drugs that include CBD with less than 0.1% of THC (tetrahydrocannabinols) are considered Schedule V drugs under the CSA, provided that they are approved by the federal Food and Drug Administration (FDA). See Schedules of Controlled Substances: Placement in Schedule V of Certain FDA-Approved Drugs Containing Cannabidiol; Corresponding Change to Permit Requirements, 83 Fed. Reg. 48,950 (Sept. 28, 2018). Schedule V drugs are those that are determined to “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.” 21 U.S.C. § 801(1). This means that CBD products that have been approved by the FDA may be lawfully prescribed and that penalties for unlawful use are generally lower than they would be if they remained classified as a Schedule I narcotic.
Employee Medical Marijuana UseMay employers discipline employees for using medical marijuana? It depends.
The federal Americans with Disabilities Act (ADA) and Rehabilitation Act expressly exclude from coverage employees or applicants “who [are] currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a); 29 U.S.C. § 701(a); Although several jurisdictions have legalized medical or recreational marijuana use, none require employers to permit employees to use or consume marijuana in the workplace or on working time. [2] Similarly, almost all of those jurisdictions permit employers to take disciplinary action against an employee who is under the influence of...
