President Joe Biden supports marijuana decriminalization, but efforts to legalize cannabis consumption are likely to continue at the state level for now. In 2021, employers will need to review their policies and ensure that they comply with evolving laws, particularly those covering medical marijuana patients.
"There's a lot of speculation about whether the new administration will push to legalize marijuana," observed Mariah Passarelli, an attorney with Cozen O'Connor in Pittsburgh. She doesn't think federal legalization is likely to happen anytime soon.
At the federal level, marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means it is deemed to have no medical value and a high potential for abuse. The executive branch can reschedule cannabis, but Passarelli said this would have a limited effect. Dispensaries may gain some tax advantages, but recreational use would remain illegal. Legalizing marijuana would take congressional action.
Although federal changes may come slowly, employers can expect to see speedier actions at the state level. Even states that have already legalized medical marijuana use are expanding their laws to cover more reasons for use and ways to use cannabis (such as smoking and vaping), Passarelli noted.
"As more states legalize marijuana use, companies with operations across multiple states will be forced to re-evaluate their workplace policies, as well as whether it is still practical to continue spending resources on drug testing," said Michael Freimann, an attorney with Greenspoon Marder in Denver.
Uncertainty at the Federal Level
Robert DiPisa, an attorney with Cole Schotz in Hackensack, N.J., noted that the Black Lives Matter movement has emphasized the social justice aspects of decriminalizing cannabis and the effect that its Schedule I status has on certain ethnic groups and impoverished areas.
Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y., thinks lawmakers will consider legislation to legalize marijuana sometime during the Biden administration. "However, there are so many other more pressing issues to be addressed during 2021 that it is difficult to say when that might happen," she said.
Biden and Vice President Kamala Harris have pledged to decriminalize marijuana. "Under a Biden-Harris administration, we will decriminalize the use of marijuana and automatically expunge all marijuana-use convictions and end incarceration for drug use alone," Harris said during an ABC virtual town hall on Sept. 14, 2020.
Harris supported the Marijuana Opportunity Reinvestment and Expungement (MORE) Act. The U.S. House of Representatives passed the bill on Dec. 4, 2020, but the legislation did not advance in the U.S. Senate. The act would deschedule marijuana, remove criminal sanctions and provide some relief for past convictions. Under the MORE Act, states would still regulate cannabis.
Although many Democrats support more-lenient marijuana laws, Passarelli noted, not all House Democrats voted in favor of the MORE Act. Six Democrats voted against it. So even with a Democrat majority, she said, there's no guarantee that the bill will pass.
Contentious issues also may prove difficult to pass in the Senate, which is split 50-50 between Democrats and Republicans. Harris will cast the tiebreaking vote when the Senate is divided.
Freimann thinks Congress is more likely to reduce the designation of marijuana from a Schedule I to a Schedule II drug.
Focus on State Laws
"State legalization efforts will continue," Passarelli said. In the last election, voters in five states approved marijuana laws. In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters approved recreational use. Mississippi voters decided to legalize medical marijuana in the state, and South Dakota voters agreed to legalize both recreational and medical use.
Thirty-five states have now approved medical use, and 15 of those states and Washington, D.C., also have approved recreational use. South Dakota's new recreational cannabis law, however, is currently tied up in litigation.
Employers need to be aware of how each applicable statute impacts the workplace. "Many state medical marijuana laws prohibit employment discrimination against applicants and employees who use medical marijuana, and we can expect to see the courts continuing the trend to protect the rights of medical marijuana users in the workplace," Russo explained.
While the list of states with recreational marijuana laws is growing, she noted, these laws generally do not contain employment protections for applicants and employees.
Although employers may need to revise their drug-testing and accommodation policies, no state law requires employers to tolerate on-the-job cannabis use or intoxication.
"In 2021, it will be really important for employers to keep their eye on the case law," Passarelli said, particularly as courts continue to interpret employee protections under medical marijuana statutes.