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Employment Protections Under Medical Marijuana Laws: The Changing Landscape

Bloomberg Law Reports
September 21, 2011, Jennifer Gimler Brady, Michael B. Rush

2/14/12 UPDATE: The future of the Delaware Act has been called into question, as the U.S. Department of Justice recently announced that growers, distributors and state employees could be prosecuted under federal drug laws.  It has been reported that in a letter to Delaware Governor Jack Markell’s Chief Legal Counsel, U.S. Attorney Charles M. Oberly III stated that growing, distributing and possessing marijuana, in any capacity, other than as part of a federally authorized research program, is a violation of federal law, regardless of state laws permitting such activities.  Based on this development, Governor 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.  

Many states have enacted or are considering medical marijuana legislation, some of which involves employment related provisions. The potential exists for conflicts between state laws protecting employees who use medical marijuana and federal laws that make marijuana illegal and mandate employee drug testing. Employers should have policies addressing medical marijuana use, train staff on such policies, and document medical marijuana-related employment decisions.

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