As most are aware, many states have recently repealed statutes criminalizing the possession or use of marijuana, at a minimum, created an exemption for medical use. Illinois,1 Michigan,2 Colorado,3 California,4 and Massachusetts 5 are among states that have fully decriminalized marijuana for personal use. In addition, many states, such as Ohio, have declined to legalize marijuana for recreational use but have enacted laws to permit medical use of marijuana.6
Indiana is not one of those states. Notwithstanding the national trend of States repealing statutes that criminalized possession of marijuana, Indiana remains steadfast in its prohibition of marijuana.7 While opinions obviously vary a great deal as to the wisdom of that prohibition, this continuing prohibition does, for the time being, hold at bay some of the thornier issues that can arise for employers regarding employee use of marijuana.
The principle concern for employers is of course the concern that any sort of intoxication by employees will result in harm to a third-party and, thus, liability to the employer under the doctrine of respondeat superior. This principle holds that “an employer is liable for employees’ tortious acts only if those acts occurred within the scope of employment.” Cox v. Evansville Police Dept., 107 NE3d 453, 460 (Ind. 2018). In addition, the Federal Drug-Free Workplace Act of 19881 requires some federal contractors to agree to provide a drug-free workplace as a condition of receiving a contract from a federal entity.
In light of these concerns, many employers understandably have implemented drug testing as a condition for employment, either at the beginning of employment or as a condition of continuing employment. Marijuana raises a unique challenge for employers in that an employee may test positive even when the employee is not under the influence of marijuana and has not been for quite some time. Marijuana typically results in intoxication for a period of two to three hours.8 Nonetheless, metabolites of THC 9 use can remain present in the body at detectible amounts several days after use.10
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1 Cannabis Regulation and Tax Act, signed into law by Illinois Governor J.B. Pritzker January 1, 2020.
2 Michigan Regulation and Taxation of Marijuana Act, passed 2018.
3 Colorado Constitution of 1876, Art. XVIII, § 16.
4 California passed Proposition 64 in 2016, permitting recreational use of marijuana by persons over 21 years of age.
5 Mass. Gen. Laws. Ch. 94G, § 7.
6 See, for instance, Ohio Revised Code Chapter 3796.
7 Ind. Code § 35-48-4-11(a) provides:
A person who:
- knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish, or salvia;
- knowingly or intentionally grows or cultivates marijuana; or
- knowing that marijuana is growing on the person’s premises fails to destroy the marijuana plants;
commits possession of marijuana … a Class B Misdemeanor …
Likewise, marijuana remains a controlled substance under federal law. 21 U.S.C. §§ 811, 841.
8 National Highway Traffic Safety Administration, “Marijuana-Impaired Driving, A Report to Congress,” July 2017, p. 13.
9 Delta-9-tetrahydrocannabinal, the primary psychoactive substance in marijuana. Id., p. 4.