Guest Authors: Thomas Lemmer, Steven Masiello & Mason Smith, McKenna Long & Aldridge. Originally posted at http://www.mckennalong.com/publications-advisories-3141.html
Private use and possession of up to one ounce of marijuana is now legal in Colorado and Washington – at least under state law. Regardless of how the issues ultimately play out in the employment law context, it seems clear contractors will not need to dramatically alter their workplace policies to accommodate the new laws, as marijuana remains a controlled substance under federal law. The risks of employee usage on the job warrant special caution, however, as employees may be emboldened in the wake of the permissive legislation. This, in turn, may raise issues regarding drug free workplace compliance and security clearances.
Federal contractors must comply with the Drug Free Workplace Act of 1988 and its implementing contract clauses (48 C.F.R. §§ 52.223-6 and 252.223-7004), which require contractors to develop and maintain drug-free workplace programs. Such programs must include, among other features, disciplinary action or rehabilitation following a criminal drug conviction and a prohibition on the possession or use of controlled substances in the workplace. This includes marijuana, a Schedule I controlled substance under the Controlled Substances Act of 1970. See 21 U.S. C. § 812.
The DFARS clause at § 252.223-7004 also requires testing for DoD contractor employees in “sensitive positions” (i.e. those with security clearances or those involving national security, health or safety or other functions requiring a “high degree of trust and confidence”). Marijuana use by employees may also jeopardize their ability to maintain their clearance levels. DoD guidance on security clearance evaluations specifies “illegal drug possession” (including marijuana) as a condition that could raise a “security concern,” and recent drug involvement or use will “almost invariably” result in unfavorable determinations.See DoDD 5220.6, E2.A8.
Importantly, Colorado’s Amendment 64 specifically leaves in place the right of employers to maintain policies “restricting the use of marijuana by employees” or prohibiting the use of marijuana on company property. What constitutes “use” – i.e., smoking on company property versus working while inebriated – is a matter that courts have not resolved, although public consumption under both Amendment 64 and Washington’s Initiative 502 is expressly prohibited. A surge in employment litigation is still likely to result in places like Colorado, where a “Lawful Activities” statute prohibits adverse employment actions against employees for lawful activities conducted off-property and after hours. However, the growth, sale, or possession of any amount of marijuana remains illegal under federal law, as does the bringing of marijuana onto federal property, including all federal buildings, national parks and forests, military installations, and courthouses. Regardless of the DOJ’s enforcement stance (which is still unclear), contractors should actively guard against the risks of employee use and possession of marijuana. This includes both increased liability and tort actions based on negligent hiring claims.
As 18 jurisdictions currently permit some type of marijuana possession, continued developments in this area are certain. MLA recommends that contractors review their employment policies and clarify them as necessary to advise employees that marijuana use or possession in the workplace is still prohibited under federal law and is therefore grounds for discipline. Adding expansive language such as “including marijuana and all other federal controlled substances” is advisable. Distribution of an updated policy or notices regarding the continued prohibition of marijuana is recommended to deter employees from believing that the new laws override federal law and company policy based upon federal law and contracts.