Sessions Isn’t Blowing Smoke—Marijuana Enforcement Is Back on the Books

Asima J. Ahmad

At the beginning of January, Attorney General Jeff Sessions issued a one-page memorandum rescinding the Obama-era approach to marijuana enforcement, which had largely been “hands-off” on prosecuting marijuana users and businesses that sold marijuana in states where the drug was legalized. In its January 4 memo, the Justice Department emphasized that the cultivation, distribution, and possession of marijuana remains prohibited by the Controlled Substances Act and is subject to “significant penalties.” The memo further stated that marijuana is a “dangerous drug” and that marijuana activity is a “serious crime.” The Attorney General concluded that previous nationwide guidance issued under the Obama administration specific to marijuana enforcement was “unnecessary” and “rescinded, effective immediately.”

To date, 30 states and the District of Columbia have enacted laws that legalize some form of marijuana use. Additional states are considering the legalization of recreational marijuana use or otherwise permitting its use for medicinal purposes. While the full impact of the Sessions’ memo remains to be seen, employers should continue to monitor developments under state or local laws that permit marijuana use by individuals and consider the impact of, and compliance with, seemingly conflicting federal, state, and local mandates. This is especially true if an employer learns that an employee uses marijuana as part of a medical treatment, or is advised by an employee that medical marijuana use will lead to a positive drug test, as both scenarios could ultimately provide the basis for a claim under the Americans with Disabilities Act or state equivalent. Since state laws governing marijuana use and possession vary, and only some provide workplace protections, employers should reach out to Blank Rome attorneys with any questions to ensure proper compliance.