Roughly a month ago, the U.S. House of Representative voted to pass the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which decriminalizes marijuana under federal law. Most notably, the MORE Act would remove marijuana as a “scheduled” drug under the Controlled Substances Act (CSA). The proposed MORE Act also addresses other marijuana-related topics, such as taxes, denial of federal public benefits due to marijuana use, and protections for cannabis businesses. As explained below, the MORE Act may bring change for employers.
This is not the first time the MORE Act has headed to the Senate. In 2019, a previous version of the bill was introduced as the first piece of federal legislation to propose removing marijuana from the CSA schedule. That bill passed the House by a 228-164 vote, largely along party lines. Ultimately, that version did not progress any further. The bill was revised and reintroduced in mid-2021. After various amendments, the current version passed in the House, receiving a 220-204 vote, again largely along party lines. Now, it’s the Senate’s turn to vote.
All of this begs a question: If marijuana is removed from the CSA, what could this mean for employers?
As of now, marijuana is a Schedule I drug, meaning that it is illegal under federal law. As a result, the Americans with Disabilities Act, also a federal law, takes the position that individuals who are using marijuana, even for a medical purpose, are not “disabled” because they are engaging in an illegal activity. Therefore, the ADA does not protect medical marijuana users, and you may still terminate employees who fail a drug test for marijuana, have marijuana on their persons at work, or are under the influence of marijuana while on the job, regardless (generally) of what state law says.
However, 37 states currently allow medical marijuana use, and this conflict between federal and state law has created confusion for many. While state law may legalize marijuana for medical purposes, it is still an illegal drug under federal law, so employers are generally free to continue prohibiting and disciplining for marijuana.
If the MORE Act becomes law, all of that would be subject to change. Although it will all depend on what the final law looks like, marijuana would no longer be an illegal drug under federal law, and the Americans with Disabilities Act’s approach on marijuana use may change. If this change occurs, you may want to consider some policy changes.
If the Senate passes the MORE Act, it would only need the president’s approval, to become law, which is expected. Stay tuned to see how the Senate will vote — passage will require all Democrats and 10 Republicans to vote for the bill. Until then, remember that marijuana is still illegal under federal law, and check your state law for any legalization requirements.