Tuesday, July 13, 2021
"Higher Me: Marijuana Regulation in the Workforce and the Need for State Legislated Employee Protections"
The title of this post is the title of this new paper recently posted to SSRN and authored by Lily Boehmer, a recent graduate of The Ohio State University Moritz College of Law. (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.) Here is this latest paper's abstract:
Although illegal under federal law, states have increasingly pushed the cannabis legality boundary by legalizing the use of recreational and medicinal marijuana at the state level. In the space between diverging federal and state law, such actions have created a dire situation for employees; employees in states that have legalized the use of marijuana can be fired for arguably legal conduct. Legalization of hemp and cannabidiol (CBD) products increase the risk of termination and litigation for employees and employers. State legalization is not what it purports it to mean.
This paper examines the current legal framework of cannabis regulation, discusses the historical, legal precedent of an employer’s right to terminate an employee in contrast to recent case law providing protection and hope to employees, and analyzes why some employers have stopped marijuana drug testing in response to faulty testing and diminished applicant pools. Ultimately, this paper argues that, absent federal legalization of marijuana, states must protect employees’ off-duty marijuana use through express state legislation. Legalization cannot be fully actualized until employees can use marijuana without employment repercussions.