23 states, plus the District of Columbia and Guam permit some form of medical marijuana use.  And, there are various medical marijuana ballot provisions, including currently in Florida, which likely will lead to more states permitting medical marijuana after this November’s election.

Despite the overwhelming change of law at the state level, federal law still classifies marijuana as a Schedule I drug.  Schedule I drugs are defined as having “no currently accepted medical use and a high potential for abuse.”  So, its no surprise that with almost half the states approving medical use of marijuana there would come a time in which the Drug Enforcement Administration (“DEA”) would have to revisit marijuana’s classification.  That time is now, with the DEA indicating it will issue new guidance on marijuana during the first half of 2016

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Descheduling, or the more likely rescheduling, could, over time, have a big impact on employers seeking to enforce a “drug free workplace.”  Employers do not violate the Americans with Disability Act (“ADA”) when they test for illegal drugs, but if marijuana becomes a descheduled or rescheduled drug, the gray area as to the legal treatment of  marijuana grows grayer.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.