We have been getting a lot of questions from employers about how employees’ legal use of marijuana impacts an employer’s ability to enforce its drug testing policy. Most of these questions were generated by the recent actions by voters in Colorado and Washington who legalized the recreational use of marijuana in those states. While Colorado and Washington are the first states to approve the recreational use of marijuana, numerous other states have legalized the use of marijuana for medical purposes for several years. Now, however, employers are asking: what happens if an employee tests positive for marijuana under our workplace drug and alcohol policy, but says that he or she used marijuana legally either for medicinal purposes or while in a state that has legalized marijuana for all purposes?

Our answer is usually:

Apply your drug and alcohol policy as you normally would, but (there is always a "but," we are lawyers after all), proceed with caution.

The courts that have been faced with this issue in situations involving medical marijuana have generally held that an employer has the right to enforce a zero tolerance policy for drugs, including marijuana. Where an employee has been terminated for testing positive under an employer’s drug testing policy and the employee filed a lawsuit arguing that he or she was wrongfully discharged because he or she used marijuana legally, the courts have upheld the termination. Courts in California, Oregon and Michigan have reached this result. This is good news for employers.

So why the "but?" Because these decisions are based on the specific language of each state’s law and that language is different in every state. Some state laws make clear that employers are not required to accommodate the use of medical marijuana, but others are silent on employment issues. Therefore, even though there is no Pennsylvania law permitting the use of marijuana at this time, medical or otherwise, you should be aware of the specific requirements of the state laws in states where your organization is operating.

Furthermore, there are a number of issues that remain unresolved. For example, would an employee terminated for using marijuana legally be approved for unemployment compensation benefits? Will the Equal Employment Opportunity Commission enter the fray with an opinion on the implications of the Americans with Disabilities Act? It may be some time before these issues are wrapped up.

For employers, it’s important to keep in mind that the while the case law is generally favorably, laws are changing all of the time so the future is hazy. In the future, state laws may prohibit employment discrimination based on marijuana use. Therefore, be sure you have a handle on the laws in the states in which you are operating, and make sure your policies are updated accordingly. Finally, don’t forget to make sure you have thoroughly analyzed all of the moving parts before terminating an employee who tests positive for marijuana and claims that the use was legal or you could see your termination decision go up in smoke.