In our 2017 article on the state of marijuana in the U.S., we covered how more and more states continue to legalize marijuana in some form despite the drug still being illegal at the federal level. Since that time, the trend has continued, with thirty states and the District of Columbia now having laws that broadly legalize marijuana in some form:

• Nine states and Washington, D.C., have legalized marijuana for recreational purposes (state officials enforce some limits, including an age requirement, how much a person can buy and possess at once, the packaging of the product and taxes).
• Medical marijuana is legal in 29 states.

This map shows current state laws and recently approved ballot measures legalizing marijuana for medical or recreational purposes. Final rules for recently passed medical marijuana laws are pending in some states.

All of these changes are happening despite the federal government’s continued classification of marijuana as a Schedule 1 drug, which means regulators consider it to have high potential for abuse, no agreed-upon medical purpose and insufficient safety standards for use under medical supervision. According to the federal government, both recreational and medical marijuana are illegal regardless of how an individual state has voted.

This makes the use of marijuana on a federal project illegal; regardless of the circumstances and state laws, any contractor, subcontractor, supplier or worker cannot consume marijuana if working on a federal project. This federal ban also generally means that employers can prohibit the use of marijuana on non-federal projects, even if the drug is legal in a given state.

Obama Administration vs. Trump Administration

Adding to the legal confusion around marijuana is the different approach taken by various administrations. Despite the federal prohibition, the Obama administration took a relaxed approach to marijuana, generally letting states do as they wished as long as they met certain criteria (such as not letting legal pot fall into kids’ hands or cross state lines). The Obama-era guidance was developed in response to the increasing number of states that decriminalized or legalized marijuana for medical or recreational purposes.

In contrast, the Trump administration has so far taken a tougher line, allowing federal prosecutors to crack down on marijuana even in states where it’s legal – which could let federal law enforcement shut down pot businesses that are legal in their own state. In January, Attorney General Jeff Sessions withdrew the Obama-era federal guidelines that effectively limited prosecution of businesses and individuals who sold pot in a legal manner under state law. This puts these states and businesses in direct conflict with federal law. As a result, lawmakers have introduced several pieces of legislation to secure more permanent protections for the cannabis industry.

Safety

Regardless of anyone’s personal beliefs about whether the federal government should take a more hands-off approach to marijuana, it doesn’t change the fact that direct workplace concerns still exist around its use. Employers have a responsibility to ensure a safe workplace and one free from workplace hazards. Many questions remain about the effects of cannabis on a person’s cognition, problem solving, memory, behavior, coordination and mental health. All of these could impact safety and employers need to take all of these potential risks into consideration. These are some of the reasons for workplace drug testing, especially in a safety-sensitive industry like construction.

The marijuana debate is one that will likely go on for the foreseeable future, especially with the increased public support around marijuana’s legalization. There are ongoing clinical studies into the use of marijuana for various medical conditions, particularly into potential medicinal benefits in the wake of the opioid crisis. The LHSFNA will monitor these developments and continue to make recommendations to LIUNA and its District Councils, Locals Unions, health and welfare funds and signatory contractors that put the health and safety of LIUNA’s members front and center.

[Jamie Becker is the LHSFNA’s Director of Health Promotion.]