One Toke Over The Line?

Date: September 21, 2017

By: Eric Schlam, Esq. 
Formerly Counsel with WTP, Eric recently joined IBTS - Institute for Building Technology and Safety as its General Counsel. We wish Eric the best at his new position. 

Originally published by Association Trends magazine

"One has a moral responsibility to disobey unjust laws,” Martin Luther King Jr. once said. But what if there are two laws – one federal, and one state – that are on opposite sides of the legal spectrum? Which one is “unjust”? Which one should we “disobey”? That is the dilemma presently facing this nation where a majority of the states now permit the possession and use of marijuana for either recreational, or medical purposes; whereas, under federal law, it remains a crime.

This dichotomy has led to a number of litigated disputes, often in the employment context. The common scenario finds an employee in a state, which allows for medical marijuana usage, being terminated after failing a drug test by an employer with a zero-tolerance drug policy. The employee relies upon state legislation that allows the worker to possess and consume cannabis for recreational use, or a myriad of specified medical conditions. The employer, however, in direct contradiction to the state's permissive use law, argues that marijuana remains classified by federal law as a Schedule 1 drug under the Controlled Substances Act (defined as having no legitimate medicinal purpose), and thus is illegal to use or possess in any amount. Invariably, courts rule consistent with the supremacy clause in Article VI of the U.S. Constitution, which mandates that where there is a conflict between state and federal law, the latter shall prevail.

So what is each party to do? Given the weight of the law is on the federal side despite the number of states allowing for some use of cannabis, the prudent course for employers, to protect the safety and well-being of the workplace, is to develop policies which acknowledge an employee may make their own lifestyle choices but such activity cannot interfere with job performance. The employer policy should also expressly forbid employees from reporting to work impaired, or possessing or consuming drugs and alcohol during working hours. Lastly, the policy should state that employees are subject to drug testing and those who refuse may be terminated, while those who fail are subject to disciplinary action, including and up to, termination. For the employee, the answer is profoundly contradictory – should they choose to engage in behavior state government allows, they not only run the risk of being terminated by a zero-tolerance employer, they may also be charged with a federal felony for the use and possession of marijuana.