Marijuana Legalization Measures Light Up Election Day

Author: David B. Weisenfeld, XpertHR Legal Editor

November 3, 2014

Tomorrow, voters in Oregon, Alaska and the District of Columbia will vote on whether to legalize recreational marijuana use and treat it more akin to alcohol. While Colorado and Washington are the only states to have legalized recreational marijuana use, that could change this week. In addition, Florida voters will vote on whether to legalize medical marijuana use.

Recreational Marijuana Measures

None of the measures would prevent employers from maintaining a drug-free workplace policy. Marijuana remains illegal under federal law. And Oregon employment attorney José Klein of Barran Liebman tells XpertHR of his state's proposed measure, "If an employer is opposed to an employee using marijuana off-duty, there is nothing that would prevent the employer from imposing discipline based on a positive drug test."

At the same time, Klein cautions that some employers may wish to revisit their drug testing policies for practical reasons if testing is conducted for nonsafety-sensitive positions: "If you're in an area where usage is fairly common, finding qualified applicants for your barrista or call-center job could be difficult."

Klein suggests that employers in general may want to move to different testing mechanisms that can measure incapacitation rather than for traces of marijuana. The Portland employment attorney likens this to field sobriety tests that police sometimes conduct on drivers.

The vote on the Oregon ballot measure is expected to be close. The measure would enable adults 21 and over to possess up to eight ounces of marijuana at home, grow four marijuana plants and possess one ounce outside of the house.

The Alaska ballot initiative would allow adults 21 and over to possess up to one ounce of marijuana and grow six marijuana plants at home. Meanwhile, the District of Columbia measure would not permit the sale of marijuana, but would decriminalize its possession for up to two ounces for personal use. Medical marijuana use is already legal for serious health conditions in all three of these jurisdictions.

Florida to Vote on Medical Marijuana

Florida could become the first southern state to legalize medical marijuana, and 24th overall, if voters approve a ballot initiative that would amend the state's constitution. The measure needs to receive at least 60 percent of the vote in order to pass.

The language specifies that medical marijuana, if approved, could only be used to treat debilitating conditions as determined by a licensed Florida physician. Among the covered conditions would be cancer, glaucoma, HIV-positive status and Parkinson's disease.

However, recent polls show that passage of the Florida legalization measure is becoming less likely with election day approaching.

Colorado Supreme Court Case Holds Key for Employers

As José Klein notes, even in states that have legalized medical marijuana, the courts have ruled that employers can fire or refuse to hire individuals who fail drug tests regardless of the reason. But a pending Colorado Supreme Court case could put that to the test.

The case of Coats v. Dish Network involves a quadriplegic man fired for failing a drug test, even though his use occurred off duty and off the employer's premises. He has cited a law that bans employers from terminating employees for engaging in lawful, off-duty conduct.

"Coats seems like a guy who is the poster boy for medical marijuana," said Klein, who notes that a ruling in his favor could change the landscape. Many other states have similar off-duty conduct laws, so employers should watch the outcome, as well as these multiple ballot measures, closely.