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Fast-evolving marijuana laws vex employers

Posted On: Mar. 5, 2015 12:00 AM CST

NEW YORK — As more states embrace the legalization of marijuana for medicinal and/or recreational use, employers' efforts to enforce workplace anti-drug policies are becoming more complex, according to a panel of experts.

To date, 23 states and the District of Columbia have passed legislation permitting the use of medical marijuana, with four states decriminalizing the drug's recreational use as well.

“It changes almost daily,” Dr. Teresa Bartlett, senior vice president and medical director at Sedgwick Claims Management Services Inc. in Troy, Michigan, said Wednesday during a panel discussion at Business Insurance's 2015 Risk Management Summit in New York.

“There is so much going on legislatively with regard to marijuana, you really have to stay on top of it,” Dr. Bartlett said.

Employers in states with relaxed marijuana laws will likely face new legal challenges when making employment decisions that incorporate drug test results, panelists said, particularly if employees and/or job applicants who use marijuana for medicinal purposes feel as though an employer's actions conflict with the new state laws.

“(Marijuana) still has no accepted use as far as the federal government is concerned, and that is not going to change for quite some time,” said Paul Millus, of counsel to Meyer, Suozzi, English & Klein P.C. in New York. “So you're going to have this continuous conflict between the federal government and the states, and it's going to give employers fits.”

However, Mr. Millus noted that same conflict between state and federal laws is precisely the reason employers have been mostly successful in defending accusations of unfair employment practices in lawsuits brought by employees who were fired, disciplined or denied a job based on their use of marijuana, even in states where it is legal.

“What's clear so far is that the states giveth, but the feds taketh away,” Mr. Millus said. “It seems all of the cards are falling in favor of employers at this point in time, irrespective of the trend (toward legalization).”