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Equal Rights Division Newsletter - August 2019

Wisconsin Employers and Marijuana

Last June, Illinois became the 11th state in the U.S. to legalize recreational use of marijuana. Two of our other neighbors, Minnesota and Michigan, have legalized marijuana for medicinal purposes. What does this changing environment mean for Wisconsin employers with workplace policies that restrict employee use of marijuana and other drugs?

In Wisconsin, these changes in other states' laws have little legal effect on employers' rights. Wisconsin employers can certainly still restrict possession, distribution, and use of marijuana in the workplace, and they can prohibit employees from working while under the influence. As with any workplace policies, such policies are best put in writing, clearly communicated to all employees, and enforced consistently and fairly.

It is true that Wisconsin law prohibits employment discrimination based on the use of lawful products, such as tobacco products. However, even while other states have legalized marijuana use in different circumstances, marijuana use remains illegal under federal law. Thus, employment action based on an individual's marijuana use would not be considered "lawful products" discrimination.

However, there are other legal pitfalls in Wisconsin for employers to avoid. For example:

• Wisconsin prohibits discrimination based on arrest and conviction records. Refusing to hire or taking other employment action against an individual based on a drug-related arrest or conviction (as opposed to, for example, current drug use) may be considered illegal discrimination in most circumstances.
• Additionally, Wisconsin law distinguishes between current use of illegal drugs and drug addiction. Addiction is treated as a protected disability under both Wisconsin and federal law. Not only should employers not refuse to hire or take other employment action based on someone's addiction disability, but most employers must reasonably but affirmatively accommodate such disability, such as by allowing an employee time off work for addiction treatment.

In cases in which an individual is using marijuana to treat a medical condition (presumably in another state), a Wisconsin employer can enforce its workplace policies, but must still engage in an interactive process with the employee to determine how to accommodate the underlying disability.

So, Wisconsin employers can still enforce workplace policies restricting employee marijuana use. It is up to employers to determine the scope of such policies, as well as how to enforce them. Some employers – such as those employing commercial drivers or other safety-sensitive jobs – may choose to continue to enforce tough policies under which employees found to be using marijuana must be fired. On the other hand, many employers may find that such "zero tolerance" policies are not practical or desirable given the changing landscape of marijuana use. Such employers may instead adopt policies that focus less on whether an individual has used marijuana, and more on the impact of such use on the individual's ability to do his or her job. For instance, in the example in the first paragraph of this article, the employer would not be concerned about the employee's weekend marijuana use but would be concerned about his late arrival to work and his possible impairment on the job.

Whatever policy an employer chooses, the policy should be clearly communicated and enforced consistently with all employees. Additionally, employers should stay mindful of prohibitions against discrimination based on disability and arrest or conviction record.

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