Last month, voters in Colorado and Washington approved ballot initiatives making possession and use of small quantities of marijuana legal under state law. Employers with operations in those states immediately began asking whether this change will affect their ability to exclude from work employees or applicants who test positive for marijuana during employer-sponsored screenings.

While these questions will be eventually addressed through litigation, these ballot initiatives most likely will not affect employer policies regarding marijuana use. In September, in Casias v. Wal-Mart Stores, Inc., the Sixth Circuit Court of Appeals rejected a wrongful discharge claim filed by an employee who claimed that Michigan's medical marijuana law prevented Wal-Mart from terminating him based on a positive test when he possessed a legal prescription, and where there was no evidence that he was intoxicated at work.

The Sixth Circuit rejected this claim, concluding that the Michigan medical marijuana law does not regulate private employment. The statute is simply silent on this issue, and the court was unwilling to imply restrictions on employers absent clear legislative intent. This decision follows several others in medical marijuana states reaching the same conclusion.

Like the medical marijuana laws, the two ballot initiatives do not directly address the impact of the laws on the employment relationship. Advocates for legal use of marijuana will contend that such rights are implied in the initiative. Otherwise, any person legally using marijuana would be subject to termination of employment. However, to date courts have taken the position that it is up to state legislatures to create such employment rights.

Of course, marijuana remains illegal under federal law. State interpretation of their marijuana laws would have no impact on the need to follow federal prohibitions on drug use for employees such as DOT-regulated drivers. In addition, the federal government has not indicated its position with regard to the new state laws, or whether it will continue to enforce contrary federal laws in those jurisdictions.