Madison Takes ‘Pot’shot at Wisconsin, Joins Growing List of Municipalities to Decriminalize Cannabis

In November 2020, the Common Council for the City of Madison, Wisconsin, passed ordinances decriminalizing the possession and use of small amounts of cannabis or cannabis derivatives within city limits. With those ordinances, which became effective on Friday, December 4, 2020, Madison joins a number of other Wisconsin municipalities that have decriminalized the possession and use of marijuana in some form or fashion. One alderman called the decriminalization long overdue, adding that it was “preposterous and outrageous” that the Wisconsin State Legislature had not moved to legalize and regulate cannabis as have many other states across the country.

According to the “drafter’s analysis” of Section 23.20 of the Madison General Ordinances as amended, an individual 18 years of age or older may possess or consume up to 28 grams of medically prescribed cannabis or cannabis derivatives if he or she “has a prescription for said possession.” The ordinance allows an individual to “consume cannabis or cannabis derivatives on private property with the permission of a person who is lawfully on the property or on public property with the permission of the owner, landlord or tenant.”

The ordinance does not apply to state-owned property, nor does it permit marijuana smoking where cigarette smoking is prohibited by Wisconsin’s ban on indoor smoking.

Unlike some of the marijuana legislation across the country, Madison’s decriminalization rules do not contain specific employment protections. As such, employers can still prohibit employees from possessing, using, and being under the influence of marijuana at worksites in Madison. Further, the possession and use of marijuana is still prohibited by federal law. Thus, although off-duty possession and use of marijuana may be legal at the local level in Madison, it does not entitle the individual to protection from employment discrimination under Wisconsin’s lawful products statute.

Nevertheless, it is possible for issues related to marijuana use to trigger employment law protections. Under the Wisconsin Fair Employment Act (WFEA), for example, individuals convicted of crimes, including drug-related offenses, cannot be excluded from employment on that basis unless the facts and circumstances of their crimes substantially relate to the jobs for which they are employed (or are applying). Further, the WFEA and the Americans with Disabilities Act distinguish between current use of illegal drugs, which is generally not protected, and drug addiction, which is a disability for which discrimination is prohibited and reasonable accommodation can be required.

Madison’s ordinances became effective on the same day that the United States House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 (H.R. 3884), a historic, but largely symbolic, bill to decriminalize marijuana at the federal level. While the U.S. Senate is not expected to follow suit, the House’s passage of H.R. 3884 is further indication that public sentiment regarding marijuana is changing. Indeed, during the November 2020 election, all six state ballot initiatives to legalize marijuana passed—four for recreational use (Arizona, Montana, New Jersey, and South Dakota), and two for medical use (Mississippi and South Dakota).

Employers may want to monitor these developments at the federal, state, and local levels, and adjust their policies and procedures accordingly.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws and the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.