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How Attorney General Jeff Sessions’ Marijuana Memo Affects Workplace Drug Testing
The U.S. government’s rocky relationship with marijuana law is nothing new, beginning with the Marijuana Tax Act of 1937, through the restriction of the Nixon administration, and up to what’s now a steady flow of state legalization.
Marijuana was susceptible to some ambiguous tax and regulatory law in the first half of the 20th century before being categorized as a Schedule 1 drug in the 1970 Controlled Substances Act, placing it alongside heroin and cocaine.
The most recent shift in the fed’s pot policy came during the Obama administration, with a 2013 recommendation that opened the door for states to begin drafting their own marijuana legislation.
Many business owners were forced to reconcile what it meant for their business operations to now have a workforce living in a state where medical or recreational marijuana was legal. Indeed, states that experienced legalization subsequently saw higher rates of positive results for marijuana in workplace drug screens.
If you’re responsible for workplace safety and you’re worried and confused about this new chapter in marijuana law, you’re not alone. Let’s dig deeper into the issue to find out what to do next.
How the Cole memo helped marijuana legalization
One thing is absolutely clear in the cloudy marijuana saga – the growth, sale possession and consumption of marijuana remains illegal under federal law. That hasn’t changed since the substance’s inclusion in the 1970 Controlled Substances Act when marijuana offenders were held to the same standards as other drug offenders.
Then, in 2013, U.S. Deputy Attorney General James Cole released a memo that changed the way prosecutors around the country charged for marijuana crimes. The Cole memo, as it is known, recognized the shift of many state governments toward the legalization of marijuana for medical purposes and to “provide the regulation of marijuana production, processing and sale.”
Instead of charging low-level offenders, the memo directs U.S. attorneys to narrow their prosecution to eight specific, more overarching concerns, including:
- “the distribution to minors;
- revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
- the diversion of marijuana from states where it is legal under state law in some form to other states;
- state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- violence and the use of firearms in the cultivation and distribution of marijuana;
- drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
- preventing marijuana possession or use on federal property.”
Marijuana-tolerant states, dispensary owners and consumers reacted to the memo with cautious optimism. While the federal government was making a pretty bold statement vis a vis its attitude about the enforcement of marijuana laws – indicating to many that it would essentially look the other way – the memo also created a legal black hole. It meant that anyone who acted on new legalization laws by growing, selling or smoking was simultaneously compliant with state law but breaking federal law.
At the time, then-Attorney General Eric Holder stated the Department of Justice would not interfere with plans to move toward recreational legalization in Colorado and Washington.
The federal flip-flop about marijuana
Once the smoke cleared a few months following the memo, it became evident that states had a green light for enacting their own statutes related to marijuana. The Cole memo ignited a spate of initiatives around the country, and now medical marijuana use is legal in 29 states, while additional states and the District of Columbia permit recreational use.
On Jan 4, current Attorney General Sessions rescinded Cole’s 2013 directive, announcing a “return to the rule of law” with his own memo to U.S. attorneys. In the memo, Sessions calls for federal prosecutors to use existing relevant statutes as laid out in the Controlled Substances Act when making their decisions about which marijuana-related activities to prosecute.
In the official press release, Sessions characterized the Cole memo as counter to the Department of Justice’s mission to enforce U.S. laws and stated the memo’s guidance “undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission.”
“Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”
For many, the aim of the administration’s move in releasing this memo was unclear. Many analysts think reversing a half-decade of legislative and commercial progress seems unlikely, while others remind that federal law is undoubtedly on Sessions’ side.
What remains the same in marijuana law
To some extent, employers in marijuana-legal states remain in the same murky water in which they’ve been mired since the first dispensaries opened their doors. They retain the right to demand a drug-free workplace and enforce drug testing policies among their employees. In states where only medical marijuana is legal, employers must still grapple with reasonable accommodation laws for those with a medical marijuana card.
Sessions’ announcement came just a few days after recreational adult use of marijuana became easier to purchase in California, the country’s most populous state and the first to legalize medical cannabis. Twelve states have active bills aimed at legalizing marijuana, in addition to other current actions that many analysts believe will lead down the same path.
Officials in many municipalities throughout the country are indicating Sessions’ memo won’t alter their current course. In Ohio, www.cleveland.com reports that state regulators plan to move forward with their plans for a medical marijuana pilot program, which is actually protected from DOJ intervention. U.S. Attorney Benjamin Glassman stated the Southern District of Ohio won’t change its approach to marijuana prosecutions.
If you’re a business owner, safety manager or human resource specialist hoping Sessions’ memo means you’ll no longer have to deal with this issue, unfortunately you’re not off the hook. Timely Testing can help you understand your rights and responsibilities, and a safe workplace. Call us at 888-403-3928 to learn more.