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Don’t be a Dazed and Confused Employer By Michael Gotzler, Jonathan Levine and Casey Kaiser Littler Mendelson


ecently, Gov. Tony Evers announced that his budget would include proposals to legalize marijuana use for medical purposes and decriminalize possession of small amounts of marijuana for personal use. While passage of the governor’s proposals is far from certain during this legislative session, legalized marijuana in Wisconsin, in one form or another, seems inevitable. At present, 32 states and the District of Columbia have legalized marijuana for medical use generally, and 11 of those states and the District of Columbia have legalized recreational use of marijuana – despite the fact that marijuana remains a controlled substance under federal law. While early legalization laws contained no explicit employment protections for marijuana users, more recently enacted marijuana laws broadly prohibit discrimination in employment based on an individual’s participation in a medical marijuana program under the supervision of a licensed health care professional. Job protections for recreational users, however, have remained virtually non-existent. Wisconsin employers can use the experience of employers in these other jurisdictions to begin preparing to address some potentially vexing issues:

Drug Testing As with all other jurisdictions where some form of marijuana use is legal, we anticipate that Wisconsin will permit employers to prohibit the use or

possession of marijuana and marijuana products by workers on work time (including meal and break periods) and to prohibit working while impaired. Workplace safety must remain a priority. Employers will likely be able to continue to conduct drug tests for marijuana, but employers need to consider what tests to conduct and what they can do with a positive test result. To the extent workers appear impaired, reasonable-suspicion drug tests may be helpful, but test methods that focus only on recent use/active marijuana metabolites in an individual’s system are more likely to help bolster the conclusion that the individual was impaired at work than are traditional urine drug tests, which measure marijuana use over days or even weeks.

regard. Some states’ medical marijuana laws explicitly prohibit discrimination against medical marijuana users, yet do not address whether employers must accommodate use of the drug. Without changes to Wisconsin’s disability accommodation law, employers would need to be prepared to accommodate disabled individuals’ medical use marijuana (insofar as the individual is using the drug during nonworking hours and not impaired at work). Courts applying state medical marijuana laws have held that employers can be liable for discrimination under state laws when they terminate medical marijuana users based on positive drug tests, unless there is evidence that the employee had used marijuana at work or was otherwise impaired while working.

Reasonable Accommodation

It’s not too early for employers to start a dialogue about how legalization may impact their workplace. n

In states where marijuana use for medical purposes is legal, employees with disabilities may request that their employers tolerate their use of marijuana as a reasonable accommodation under state law. Current state laws vary widely on employers’ obligations in this

For more information, contact Michael Gotzler at (608) 287-3701 or

Save the Date July 17th, 2019 | 9th Annual Brewers Briefing A Labor & Employment Law Conference Contact Donielle Amrein at to be added to the invite list. 10 East Doty Street | Suite 800 Madison,WI 53703 | 608.287.3700 111 East Kilbourn Avenue | Suite 1000 Milwaukee,WI 53202 | 414.291.5536

26 Spring 2019 | Marijuana Legalization

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