Marijuana legalization raises HR questions

Recreational Pot-Nevada

When states first began legalizing medical marijuana in the mid- to late 1990s, not many people would have guessed that in fewer than 20 years, the substance would be decriminalized in 16 states, fully legal for adult use in two and approved for medical use in 22.

There’s a lot of overlap among those states, but between the states with decriminalization statutes on the books and those that have legalized marijuana for medical use, more than half of the states in the country have enacted laws that somewhat or fully protect adults who use marijuana.

With this political sea change have come new challenges, not just for dispensary owners and marijuana advocates, but for everyone who owns a business in those states. Until the federal law is changed, employers in states that allow some form of marijuana use are caught in the unique legal limbo that’s created when state law allows something and federal law prohibits it.

Danielle Urban, a partner at Fisher & Phillips in Denver, has become an expert on pot-related employment questions. Colorado is one of two states, along with Washington, that legalized pot for recreational use back in the fall.

“Although marijuana use is not protected under the ADA,” she explains, “if someone comes to you and says they have a debilitating medical condition, you can’t just say, ‘Well, we’re not going to accommodate marijuana use,’ without looking at other possible accommodations. It would be unwise to end the conversation without exploring any other solutions to their condition. And in a state like Arizona, you may have no choice but to incorporate marijuana use unless it’s in a safety position.”

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