Marijuana Laws Muddy The Waters for Contractors.

AuthorBarton, Joseph
PositionViewpoint

* For federal contractors required to provide drug-free workplaces, the national trend toward legalization of marijuana will be a critical issue that will require attention in the coming years.

Employees who fail workplace drug tests and suffer adverse consequences as a result--from suspension to termination--will inevitably attempt to hold their federal contractor employers accountable in court, seeking shelter under state marijuana laws.

Do such employees have a leg to stand on? State conflicts with federal law and the uncertainties as to how the new Department of Justice will prosecute marijuana use provide little clarity.

Put simply, the marijuana industry is booming. Forbes reported that U.S. marijuana sales were $6.5 billion in 2016, and sales are expected to exceed $20 billion by 2021. Twenty-nine states have legalized medical marijuana and eight states have legalized recreational marijuana. Public support for legalization of marijuana has doubled since 2000, with Gallup polls indicating that public support for it has reached an all-time high of 60 percent.

Nonetheless, marijuana remains federally illegal. Marijuana has long been classified as a Schedule 1 drug under the Controlled Substances Act along with heroin, ecstasy and LSD. The federal government has not yet recognized any accepted use for it.

Federal Acquisition Regulation 23.5 implements the Drug-Free Workplace Act of 1988 (41 U.S.C. [section] 81), and requires that federal contractors agree to provide a drug-free workplace by publishing "a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the contractor's workplace." This notice must also specify the actions that will be taken against employees for violations of such prohibition, including termination.

Some state courts have held that employers must reasonably accommodate job applicants and employees who are medical marijuana patients under state law. For example, in Callaghan v. Darlington Fabrics, C.A. No. P.C. 2014-5680 (May 23, 2017), a job applicant in Rhode Island sued her prospective employer for refusing to hire her after she revealed, in the application process, that she was a medical marijuana cardholder and current user.

The judge found that the employer's refusal to hire violated the Hawkins-Slater Act's--Rhode Island's medical marijuana statute--prohibition against refusing to "employ... a person solely for...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT