Last month Michigan became the 10th state to approve the legal, recreational use of marijuana.[1] With the addition of Michigan, nearly 80 million Americans (approximately 25% of the US population) live in areas with recreationally legal marijuana. A total of thirty-three states allow for the use of marijuana for medical treatment with a doctor’s prescription. Missouri and Utah became the most recent additions to the growing list of states allowing for medical marijuana after voters passed legalization measures last election cycle.
However, marijuana remains illegal according to federal law as a Schedule I drug under the Controlled Substances Act (“CSA”). Further complicating matters for employers in the majority of states allowing for medical marijuana, Attorney General Jeff Sessions rescinded Obama era guidance which relaxed enforcement of marijuana laws in states that allow for medical use. In doing so, then-Attorney General Sessions called the prior guidance “unnecessary” and indicated federal prosecutors will “weigh all relevant considerations, including 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.”[2]
The federal judiciary has begun considering the apparent conflict between federal and state law, with differing results. In Carlson v. Charter Communications, LLC, plaintiff worked for approximately nine years before being issued a prescription for medical marijuana under Montana’s Medical Marijuana Act. Seven years later, the plaintiff was involved in a work-related accident resulting in a post-accident drug test. Plaintiff tested positive for marijuana, was subsequently terminated and filed suit alleging discrimination and retaliation under state law. The employer argued that, as a federal contractor, it was required to comply with the Drug-Free Workplace Act (“DFWA”) and “could not simultaneously permit marijuana use consistent with [state law] and at the same time ensure a drug-free workplace as defined under the DFWA…”[3] The trial court dismissed plaintiff’s claims based upon his medical marijuana use as preempted by federal law and disregarded the assertion that plaintiff never used medical marijuana at work as “irrelevant to the conflict preemption analysis [because t]he questions remains whether the state and federal law, as applied, conflict, not whether Plaintiff...
