Hunton Employment & Labor Perspectives

Voters in Michigan, Utah and Missouri passed marijuana-related ballot measures in the November 2018 elections.  Michigan, which legalized medical marijuana in 2008, became the tenth state to legalize recreational use of marijuana.  Utah voters agreed to institute a formal structured medical marijuana program, greatly expanding the scope of the state’s existing medical marijuana law, and Missouri voters for the first time authorized the state to create a system of licensed marijuana dispensaries for medical purposes. Each of these measures recognizes that marijuana remains a controlled substance, and illegal, under federal law, and that authorized users, growers, physicians, and any others who properly support or participate in these programs will be shielded from liability only under state law.

The tension between state marijuana decriminalization laws and workplace rules prohibiting drug use continues to invite discussion.  We have written on this subject several times over the years, most recently about a decision by the Massachusetts Supreme Judicial Court, to the effect that an employer had an obligation to engage in a disability-related interactive process with an employee who used marijuana for medical purposes.  All other courts to address this issue to date have reached the opposite conclusion, holding that employers may insist on drug-free workplaces regardless of state laws which decriminalize marijuana use.

The newest marijuana initiatives are consistent with this trend.  Two of the three measures that passed this November explicitly protect an employer’s right to insist on a drug-free workplace.  Michigan’s Proposal 1 clearly explains that employers are not required to “permit or accommodate conduct otherwise allowed by this act” in any workplace or on the employer's property, and are not prohibited from disciplining or taking any adverse employment action against an employee for violation of a workplace drug policy or for working while under the influence of marijuana.

Similarly, Missouri’s ballot proposal explicitly prohibits legal marijuana users from bringing claims against employers for wrongful discharge or discrimination based on disciplinary action (including termination of employment) imposed for violation of the employer’s policies against workplace drug use.

In contrast, Utah’s Proposition 2 is silent on the rights of employers, although it prohibits landlords from banning tenants based solely on their status as medical marijuana users, unless they would lose a licensing-related benefit under federal law.  This initiative is controversial in Utah, and does not have the support of the Mormon church. The state legislature has drafted a controversial “compromise bill” that seeks to modify some aspects of Proposition 2.  This bill faces challenges from those who see it as an end-run around the voters’ express wishes. Regardless of whether the final version of this bill directly addresses employer rights, however, it is unlikely that Utah courts will be sympathetic to workplace discrimination claims based on marijuana use.

By unequivocally protecting an employer’s choice to insist that its workforce be drug-free at all times, the recent Michigan and Missouri ballot measures are aligned with the approach taken by the vast majority of courts. The Massachusetts decision requiring employers to consider reasonable accommodations for legal marijuana users remains an outlier.  Should marijuana become decriminalized under federal law, however, the legal landscape may change, as some of the employer-friendly decisions in state courts are based on the premise that marijuana use remains unlawful under federal law.