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Fire Up! State Medical Marijuana Laws Still Federally Approved

December 22, 2015

By Michael G. McClory

While you were attending last weekend’s record opening for Star Wars: The Force Awakens, Congress approved and President Obama signed the Consolidated Appropriations Act of 2016, which provides for $1.14 trillion in federal spending through the end of the fiscal year.  The 2016 Budget Act received bipartisan support (though it did not have universal support) and averts a government shutdown until at least October 2016 (just before the next presidential election).  
Rolled into the 2016 Budget Act’s spending appropriations is the following spending prohibition:
“SEC. 542.  None of the funds made available in this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
This is the second year in a row that the omnibus appropriations law has barred DOJ from using appropriated funds to interfere with state medical marijuana laws (see the Consolidated and Further Continuing Appropriations Act of 2015, which The Bullard Edge discussed in April’s Anniversary Pop Quiz).
In the wake of the 2016 Budget Act, The Bullard Edge offers three observations about marijuana and the workplace.
First, marijuana remains an illegal drug under federal law.  Although the 2016 Budget Act defunded DOJ from interfering with state medical marijuana laws, this does not change the fact that marijuana (medical or not) remains a Schedule I controlled substance under the federal Controlled Substances Act.  As a result there is a gulf between what is illegal (per the Controlled Substances Act) and enforcement of the law. 
This enforcement bar was at the heart of Marin Alliance for Medical Marijuana v US Department of Justice, decided two months ago by US District Judge Charles R. Breyer in California.  Judge Breyer denied a motion filed by the Marin Alliance seeking dissolution of a permanent injunction entered against it in 2002.  Although he denied the motion, Judge Breyer also forbade DOJ from enforcing existing federal law against the Marin Alliance.  “For the foregoing reasons, as long as Congress precludes the Department of Justice from expending funds in the manner proscribed by Section 538 [of the 2015 Budget Act], the permanent injunction will only be enforced against MAMM insofar as that organization is in violation of California ‘State laws that authorize … medical marijuana.”
Second, Congress has taken no action to remove marijuana from Schedule I of the Controlled Substances Act and it remains illegal under federal law.  The 2016 Budget Act does not prevent the DOJ from enforcing federal law with respect to recreational (non-medical) marijuana, even in states like Oregon and Washington that have enacted laws legalizing recreational marijuana use and possession.  Moreover, despite the hope of some that the 2016 Budget Act provision and the MAMM decision foreshadow an impending shift in marijuana away from CSA Schedule I, President Obama said this is unlikely.  “I do not foresee anytime soon Congress changing the law at a national basis.”
Third, the 2016 Budget Act does not require employers to treat marijuana differently.  Specifically, it does not require employers accommodate medical marijuana through the modification of job duties or workplace drug policies.  Nevertheless, there is no reason to believe that employers will not continue to see increasing numbers of applicants and employees who test positive for marijuana.  For that reason, we suggest that you review your drug and alcohol policies to make certain the policies say what you want them to say.
The Bullard Edge wishes a happy and safe holiday season to all.