What happens for employers if Iowa legalizes recreational marijuana?

Marijuana related sales are predicted to surpass $35 billion worldwide this year.

Nineteen states have embraced full legalization of marijuana, while 19 others have enacted medical marijuana programs.

In 2021, four states legalized marijuana through their legislatures. Recreational legalization efforts failed in Ohio, while a medical bill failed in Kansas.

Nothing emerged in Iowa, although at least one Iowa state senator proposed legalizing recreational marijuana in Iowa and taxing it like alcohol.

How would it affect employers here if Iowa legalized recreational marijuana?

Confusion likely would be the first consequence.

Remember, both medical and recreational marijuana use remains almost entirely illegal under federal law, which also requires employers to maintain a drug-free workplace.

THC, the intoxicating chemical in marijuana, is a Schedule I controlled substance deemed by Congress to be highly addictive and without medical value.

This is particularly true because the cannabis today is much more potent than it was in 1970s, when most marijuana contained less than 2 percent of the active ingredient tetrahydrocannabinol, or THC.

Today, marijuana routinely contains between 20 percent to 25 percent THC, leading one commentator to remark that the difference between yesterday’s marijuana and today’s is like the difference between “near beer and a martini.”

Employers therefore will be faced with the question of which law to enforce as a matter of workplace policy.

In some instances, federal contracts may require that employers continue to prohibit marijuana use. Workers’ compensation insurance carriers, premises liability insurance carriers and the Occupational Safety and Health Administration also will continue to frown upon employee marijuana use due to the risk of on-the-job intoxication and the danger it presents to workplace safety.

In addition, employers desiring to restrict employees’ marijuana use will be faced with limited guidance for distinguishing between medical and recreational use.

Medical marijuana currently is legal in Iowa. Some states — 15 of the 36 that have decriminalized medical marijuana — have so-called “employee protection laws “ that prohibit adverse employment actions against medical marijuana users.

Nothing in Iowa’s medical marijuana statute protects medical users from adverse employment action, and Iowa’s courts have yet to speak on the issue.

In any event, this protection generally does not extend to employees who use marijuana while at work or report to duty impaired, given the potential dangers they present to others.

Courts in states where both medical and recreational marijuana is legalized offer some insight for the future.

A Colorado case recently upheld the termination of a paralyzed employee who tested positive for marijuana use, despite the employee’s argument that the marijuana was necessary to control leg spasms.

Courts in Washington, California and Oregon also have rejected wrongful termination claims in favor of employers’ right to maintain a drug-free workplace.

On the other hand, a Connecticut court recently ruled termination was inappropriate for a state employee who used marijuana during work hours. Why? Because that the employer’s drug-free workplace policy did not require termination for an offense of this kind.

Employers also should bear in mind that employees impaired on the job generally are not protected. Disciplinary measures should be implemented where appropriate.

Take caution, however, with regard to employees using medical marijuana to manage a debilitating condition.

While state and federal courts have so far rejected claims that the Americans With Disabilities Act protects medical users from adverse employment actions, it is nevertheless advisable to engage the employee in the interactive process finding a reasonable accommodation which would enable the employee to perform his or her duties.

You also should train your supervisors to be alert for intoxication on the job. Fortunately, employers in Iowa have decades of research, case law and legislation to guide them on how to determine if an employee is drunk.

Marijuana metabolizes in the body differently than alcohol, however, and there currently is no test or level to determine marijuana intoxication. \

In the meantime, there are steps employers can take to protect themselves.

Create a policy — including disciplinary consequences — and enforce it consistently. Document the employee’s behavior after an incident and collect signed witness statements.

As the law stands, recreational marijuana use is illegal in Iowa. But as cultural tides begin to shift, Iowa employers should not delay in taking precautions.

Continue to monitor legislation and court decisions involving these rapidly evolving issues and revise your employment policies accordingly.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.