By: Steven DeSena
The intersection of medical and/or recreational marijuana and employment law is a relatively new and evolving area, as the split between federal and state law creates uncertainty for employers and employees. The medical marijuana industry has grown rapidly since 2009, when the federal government announced that prosecuting people complying with state medical marijuana laws is a law priority; and 2011, when the Department of Justice issued a memorandum reiterating the position that it is not “an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses” and their caregivers when they comply with state law.
With the gradual softening of marijuana laws all across the country, including legalization for recreational use in Colorado and Washington, employers will be faced with tough decisions regarding employee usage of marijuana due to its illegality at the federal level. Therefore, employers could potentially still fire employees for their legal use of the controlled substance. In Colorado for example, where both medical and recreational marijuana is legal by state law, many employers still consider marijuana a controlled substance, and discriminate against its users. Urine analysis tests are frequently used to determine employment status, whether it is passing a pre-employment THC check or a random drug screen on the job. Testing positive for any amount of marijuana is legally grounds to prevent employment or for immediate termination.
However, changes are on the horizon. The next time a marijuana dispensary gets a visit from the feds, it might not be from drug enforcement agents looking to shut down an operation, but rather workplace regulators making sure that labor laws are being followed. The National Labor Relations Board (NLRB) has agreed to hear claims by the United Food and Commercial Workers Union (UFCW) of various unfair labor practices of a union organizing campaign at a medical marijuana dispensary in Maine, called the “Wellness Connection of Maine”. Organized labor already has a significant presence in the medical marijuana industry, and although the case was settled, the NLRB’s willingness to hear the claims was a tacit acknowledgement of the industry’s legitimacy. Medical marijuana employees are a logical organizing target for the 1.3 million member UFCW, which represents workers in grocery and retail stores, as well as food-processing and meatpacking facilities around the country.
Kenneth Dau-Schmidt, professor of labor and employment law at Indiana University, believes federal courts and agencies such as the NLRB face a quandary because federal laws are in conflict. He states, “[t]he conflict is federal labor law, which has a broad definition of employees, and we have to accommodate that with federal criminal law, which makes working with marijuana a crime … [and] that is some recognition that federal law may give these employees rights even though federal law may also say what they’re doing is illegal.” Further, Dau-Schmidt believes that these issues are going to arise not only in banking, labor, and employment law, but that we will see similar conflicts in other areas such as tax implications. Although the federal government considers marijuana illegal, whether for recreational or medical use, new state laws legalizing marijuana have forced federal authorities to address a variety of conflicts. Notably, the Justice Department has agreed to help banks, barred by money laundering statutes from working with drug dealers, to find a way to do business with marijuana merchants in Colorado and Washington.
 Matthew D. Macy, Employment Law and Medical Marijuana – an Uncertain Relationship, Colo. Law., Jan. 2012 at 57, 61.
 Id. at 57
 Prof. Kabrina Chang, How Will Employers Handle Medical Marijuana? New Rules Could Prove Tricky in the Workplace, Boston University Public Relations: Professor Voices, Feb. 26, 2014, http://www.bu.edu/professorvoices/2014/02/26/how-will-employers-handle-medical-marijuana-new-rules-could-prove-tricky-in-the-workplace/.
 Travis Khachatoorian, Special Report: Marijuana Discrimination in the Workplace, NewsChannel 5, Feb. 21, 2014, http://www.krextv.com/story/special-report-marijuana-discrimination-in-the-workplace-20140221.
 David Jamieson, Medical Marijuana Workers Have the Same Labor Rights as Everyone Else, Feds Say, Huffington Post, Feb. 27, 2014, http://www.huffingtonpost.com/2014/02/27/medical-marijuana-unions_n_4860793.html.
 Joshua Rhett Miller, Union Gripe Brings Federal Labor Agency Into Marijuana Debate for First Time, Fox News, March 5, 2014, available at http://www.foxnews.com/us/2014/03/05/federal-labor-agency-enters-medical-marijuana-debate-for-first-time/.
 Jamieson, supra note 7.
 Miller, supra note 10.