Weed policy options for multi-state employers — are there any?
CANNANNEW REPORT

You bet! As we all know, a growing number of states have legalized marijuana use to varying degrees. In some states, medical marijuana is permitted, but not recreational. In some states, anything goes. In some states, including New Jersey and New York, even testing for marijuana is illegal in most circumstances. And we still have states where use of marijuana is illegal. (As of today, marijuana is still an illegal drug under federal law. Legislation to legalize it at the federal level is pending, but its fate is not clear.) If an employer has operations in multiple states, chances are good that its obligations will be different in different locations. STATE OF THE UNION ON LEGAL WEED AS OF APRIL 2022 (SOURCE) (One of the downsides to federalism — a founding principle of our nation that I respect — is that it is a nightmare for employers who have operations across different states, and marijuana is nowhere near the only issue. I’m going to take this opportunity to propose that Congress enact a “Uniform Multi-State Employment Law Act,” which would allow employers in multiple states to follow the same rules in all states in which they operate. The UMSELA would preempt any state or local employment laws to the contrary, but only with respect to multi-state employers. Single-state employers would have the option of following the UMSELA or, if they prefer, the laws that apply in their individual states.) Anyway, back to reality. There is no UMSELA (at least, not yet), and it may not even be constitutional. So what are the options for an employer who operates in “legal-marijuana” and “illegal-marijuana” states, and in addition may have to comply with federal law? Option One: Lowest common denominator. Even in states where marijuana is illegal, employers are not required to test for marijuana or to prohibit…

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