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Employers face challenges on marijuana legalization

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Recreational and medical marijuana initiatives that are on next week’s ballots in several states will create challenging issues for employers, say experts.

There are either eight or nine initiatives on state ballots in next Tuesday’s election, based on how they are tallied. 

Five states — Arizona, California, Maine, Massachusetts and Nevada — would legalize the recreational use of pot, while Florida, Arkansas and North Dakota will decide whether marijuana can be used for medical purposes. 

 Sometimes also counted is a Montana ballot initiative that is focused on the issue of easing restrictions on an existing medical marijuana law.

“The country could double the number of states that allow the recreational use of marijuana and could potentially expand the therapeutic benefits of marijuana use to millions of Americans,” says Washington-based NORML, which advocates legalizing marijuana.

Among the issues raised by the various initiatives are the conflict between state and federal law on the issue, given that the drug remains illegal under federal law.
Tad A. Devlin, a partner with Kaufman, Dolowich & Voluck L.L.P. in San Francisco, said, for instance, issues can arise in a state where marijuana is legal for recreational use, but a construction project is operating on federal land or with federal funding.

There are also questions about the efficacy, reliability and admissibility of marijuana testing, said Mr. Devlin. “There’s not a breath, blood or urine test with standard benchmarks” with respect to marijuana’s presence, he said. There is also uncertainty as to marijuana’s “shelf life” in people’s systems, he said.

Kevin E. Griffith, office managing shareholder for Littler Mendelsohn P.C. in Columbus, Ohio, said much will depend on whether the initiative is for medical or recreational use.

With respect to medical use, “employers are likely to see more applicants and employees in their work force pool that may be turning to medical marijuana if it’s been recommend for use by a doctor,” Mr. Griffith said.

“The challenge there is that it may be lawful in a state and it may be recommended by a doctor, but it’s still unlawful under federal criminal law, so the employer has to make a choice about whether to design their policies to be in compliance with federal criminal law, or to allow applicants and employees to use marijuana for medical purposes,” said Mr. Griffith.

“Recreational is easier for employers to respond to, because applicants and employees are using it for nonmedical purposes,” he said. “That gives the employers a lot more leeway in deciding whether to allow applicants and employees to use marijuana for recreational purposes and it’s easier for employers to just say ‘No.’”

Mr. Devlin said the challenges created by legalized marijuana can be overcome with proper policies and procedures, rank and file training and ensuring that the work force understands the rules. With these factors in place, “there should be much less potential for disruption,” he said.