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The Employment Law Implications of the Marijuana Ballot Initiatives

Authors: Michael Clarkson (Boston), Stephanie J. Willing (Minneapolis), Rayna H. Jones (Phoenix), Brian L. Bradford (Las Vegas), Kathryn B. Gray (San Diego), Dee Anna D. Hays (Tampa), KyraAnne Gates (Torrance)

Published Date: November 14, 2016

On November 8, 2016, voters in several states passed medical or recreational marijuana measures each of which will likely impact employers. As this area of law is developing quickly, and since the Trump administration’s position on marijuana is unclear, employers may want to consider the impact of these new laws as well as watch for new developments.


Of the five states with recreational marijuana measures on the ballot, Arizona was the only state where the measure to legalize marijuana failed. Approximately 52 percent of Arizona voters opposed the measure. Proposition 205, if it had passed, would have made the consumption, possession, and purchase of up to one ounce of marijuana legal for individuals over the age of 21. Supporters of the measure have already started drafting a new marijuana legalization initiative for the next election. Although recreational marijuana is still illegal in Arizona, the state has one of the most employee-friendly medical marijuana laws in the country, which, except in limited circumstances, prohibits discrimination against employees and applicants based solely on their use of medical marijuana.


Issue 6 on the Arkansas ballot, the Arkansas Medical Marijuana Amendment of 2016, passed on November 8, 2016, and went into effect the following day. The law legalizes the use of marijuana for medical reasons by individuals with qualifying medical conditions. Issue 6 contains a nondiscrimination provision that prohibits employers from discriminating against an individual solely based on the individual’s status as a qualifying patient or designated caregiver. In light of this, employers may want to redistribute policies and/or retrain supervisors and human resources professionals as to this new antidiscrimination provision. However, the proposed amendment does not require an employer to accommodate the ingestion of marijuana in the workplace or an employee working while under the influence of marijuana.


California voters approved Proposition 64, which allows for the immediate use, possession (up to one ounce), and cultivation (up to six plants) of recreational marijuana. The Department of Consumer Affairs is charged with setting up a framework for licensing businesses to sell marijuana by January of 2018, at which point the sale of marijuana will be legal. Current laws dictating that it is an act of negligence or professional malpractice to perform certain tasks under the influence of marijuana remain intact. The proposition expressly provides that employers may continue to enforce drug- and alcohol-free workplace policies. As such, an employer is not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace.


Florida voters approved Amendment 2, which allows for medical use of marijuana by individuals with debilitating medical conditions. The amendment expands the definition of "debilitating medical condition," which now means cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” Amendment 2 does not require accommodation of any on-site medical use of marijuana in any place of employment, nor does it require any health insurance provider to reimburse any person for expenses related to the medical use of marijuana. The amendment is silent as to how employers should otherwise treat qualifying employees with debilitating medical conditions. 


By a razor-thin margin, Maine became the fourth state to legalize recreational marijuana this year. The vote was so close, it took two days before officials could certify a result, and there is a chance that opponents could force a recount. Under the new law, individuals 21 years of age or older will be allowed to use up to 2.5 ounces of marijuana, and retail marijuana shops and social clubs will be allowed to open. Employers should be aware that although the law allows them to prohibit possession or use of marijuana in the workplace, it also expressly prohibits discrimination against an employee for marijuana use. Thus, those employers that screen applicants and employees through drug testing will likely need proof that an applicant or employee who tests positive for marijuana was indeed under the influence, in possession of, or using in the workplace before an applicant or employee may be denied a position or subject to discipline.


On Election Day, Massachusetts voters approved Ballot Question 4, which will take effect on December 15, 2016 and allows for limited recreational marijuana use, cultivation, and possession. Fortunately for employers, the law sets forth that it “shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” Therefore, employers that choose to prohibit the use of marijuana and enforce their existing drug testing policies are free to do so.


Medical marijuana is already legal in Montana, but beginning on June 30, 2017, it will be easier for licensed providers to prescribe medical marijuana. Montana voters passed Initiative 182, which removes prior limitations on the number of patients to whom licensed providers can prescribe medical marijuana (previously limited to three). In addition, PTSD was added to the list of approved conditions for which medical marijuana can be prescribed. This doesn’t change anything for employers, however, as nothing in the statute requires employers to accommodate the use of medical marijuana.


On November 8, 2016, 54 percent of Nevada voters voted “yes” on Question 2, an initiative to legalize recreational marijuana in the state. Question 2 will be known as the Regulation and Taxation of Marijuana Act once codified and enacted, and will become effective on January 1, 2017. The act does not prohibit employers from “maintaining, enacting, and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under [the] act.” In other words, the act—along with existing federal law—preserves Nevada employers’ right to maintain a drug-free workplace.   

North Dakota

Over 60 percent of voters in North Dakota approved Measure 5, allowing residents who suffer from certain conditions access to medical marijuana. Covered conditions include cancer, PTSD, and chronic pain. Patients who live near a state-licensed center must obtain their marijuana from the center, but patients who live more than 40 miles away may grow up to eight of their own plants. Patients are limited to possession of only three ounces of marijuana at a time. It is business as usual for employers; the law does not offer any employment protections for medical marijuana users.

Michael Clarkson  (Boston)

Michael Clarkson
Mr. Clarkson is licensed to practice in Massachusetts and regularly appears in state and federal courts and before administrative agencies across the country. In his work with Ogletree Deakins, Mr. Clarkson litigates cases and counsels large and small private for-profit and not-for-profit employers concerning discrimination, harassment, retaliation, non-compete, wage and hour, employment contract, personnel policy and drug testing issues. A large portion of Mr. Clarkson's practice is dedicated...

Stephanie J. Willing  (Minneapolis)

Stephanie J. Willing
Stephanie Willing represents employers in all aspects of employment-related and commercial matters. She litigates cases involving claims of discrimination, breach of contract, and wrongful discharge, among others. She also advises clients on employment law issues, including hiring, disciplining, and terminating employees. She especially focuses on advising clients on compliance with local drug testing laws (Minnesota's DATWA), and the TCPA (Telephone Consumer Protection Act). In addition, she...

Rayna H. Jones  (Phoenix)

Rayna H. Jones
Rayna Jones has spent her entire career representing and counseling employers on all aspects of employment law. Rayna focuses on providing employers with practical advice for effectively managing employment issues. She is experienced representing and advising national, regional, and local clients on issues related to litigation prevention, employment discrimination and harassment, wage and hour, noncompetition, employee discipline, hiring, and termination, leaves of absences, drug testing,...

Brian L. Bradford  (Las Vegas)

Brian L Bradford
Mr. Bradford represents management in a variety of industries, including retail, hospitality, automobile dealerships, government contractors, and healthcare. His experience advising and litigating matters involve a variety of employment topics, including claims involving restrictive covenants, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, Title VII, Section 1981 of the Civil Rights Act, Nevada state laws, and various...

Kathryn B. Gray  (San Diego)

Kathryn B. Gray
Ms. Gray represents employers in labor and employment litigation. Her experience includes wrongful termination, wage and hour, class action, tort claims, and other commercial litigation in state and federal courts on both the trial and appellate court levels, as well as before governmental agencies. She also provides counsel on a wide range of employment matters including noncompete agreements, employee classification, trade secret, and family and medical leave. Ms. Gray received her B.A. from...

Dee Anna D. Hays  (Tampa)

Dee Anna D. Hays
Dee Anna Hays is Board Certified in labor and employment law by the Florida Bar. Dee Anna began her career in the labor and employment law field and continues to focus her practice on representing management in all aspects of labor and employment law compliance. She enjoys counseling clients to solve tough issues and enthusiastically defends them when necessary. Dee Anna has defended management in both federal and state courts, before numerous government agencies -- including the DOL, EEOC,...

KyraAnne Gates  (Torrance)

KyraAnne Gates
KyraAnne Gates is a Legal Editor of Firm Publications, working on the firm’s print and online legal publications and content. KyraAnne’s editorial responsibilities include editing the firm’s eAuthority email product, attorney-authored blog posts, firm newsletters, and a variety of other articles. In addition, KyraAnne works with outside legal publishers to produce monthly newsletters and other legal content. As a member of Ogletree Deakins’ Client Services Department,...