Labor: Employment protections under medical marijuana laws

Delaware’s Medical Marijuana Act exemplifies the battle between state and federal marijuana laws

The age of medical marijuana has arrived. Sixteen states, plus the District of Columbia, have enacted legislation that affords protections to qualifying individuals with debilitating medical conditions by allowing them to lawfully engage in the medical use of marijuana. Other states are considering enacting similar legislation in the near future.

Delaware recently joined this growing trend among states when it enacted the Medical Marijuana Act.  Unlike the majority of medical marijuana statutes, the Delaware Act includes provisions that afford additional protections to employees. Specifically, the Delaware Act prevents employers from discriminating against an employee “in hiring, termination, or any term or condition of employment, or otherwise penaliz[ing] a person” for his “status as a cardholder” or because of a “positive drug test for marijuana components or metabolites.”

Based on this development, Gov. Markell announced the suspension of the regulation-writing and licensing processes to implement the Delaware Act. It should be noted that federal enforcement actions are taking place in only a few jurisdictions with medical marijuana laws. In contrast, New Mexico and Maine are among states that have implemented medical marijuana dispensaries without incident. It remains to be seen whether Delaware will amend its law or perhaps engage in further discussions with the USDOJ. Uncertainty exists in the employee-friendly medical marijuana statutes. The statutes provide some protection to registered users of the drug but do not define when an employee will be considered “impaired” by medical marijuana use or “under the influence” of the drug, which would eliminate any employment-related protections.

Unlike alcohol and blood alcohol level tests, there is no set measure that is used to determine how much marijuana is in someone’s system. In making employment decisions regarding users of medical marijuana, employers should consider the following recommendations:


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Kathleen Furey McDonough

Kathleen Furey McDonough is a partner with Potter Anderson & Corroon LLP, where she focuses her practice on providing clients with counsel on employment policies,...

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