LaborPublic approval for medical and recreational marijuana is at an all-time high. In November 2016, four states voted to legalize recreational marijuana: California, Nevada, Massachusetts and Maine (although, at the time of this posting, the vote in Maine is subject to a recount). These states join Alaska, Colorado, the District of Columbia, Oregon and Washington, which previously legalized recreational use. When these changes take effect, it is estimated that one in five Americans will have access to entirely legal marijuana.

In addition, four states voted to allow or expand medical marijuana use. Those states are Florida, North Dakota, Arkansas and Montana. A total of 42 states now permit medical marijuana in some capacity.

Given the changing landscape, employers may wonder what their rights are when an employee is legally using recreational marijuana or using medicinal marijuana to treat a disability under the Americans with Disabilities Act (ADA) or a serious medical condition under the Family and Medical Leave Act (FMLA).

On the recreational side, marijuana use remains illegal for persons under 21 years of age in the states that have decriminalized it. There is also no prohibition against “discriminating” on the basis of an employee’s recreational marijuana use, regardless of his or her age, and marijuana remains illegal under federal law. Therefore, employers have several options in states that have legalized recreational use. First, no law prohibits an employer in these states from maintaining a drug-free policy. However, as a practical matter, employers should consider whether imposing a drug-free workplace requirement in these states might impede their ability to recruit employees. Alternatively, employers may choose to treat recreational marijuana in those states much the same way as they treat alcohol. For example, employers could hire an applicant who tests positive for marijuana, provided that the employee is over 21. Employers might also disregard off-the-clock recreational use, provided that the employee’s work performance does not suffer.

Medicinal use is more complex. Employers risk running afoul of the ADA or FMLA if they terminate an employee for an illegal reason, such as on the basis of a disability for which the employee is prescribed marijuana, or in retaliation for an employee taking FMLA leave (for example, an employee taking intermittent leave to allow for off-the-clock medical cannabis consumption). Currently, the few courts that have considered the issue have held in the employers’ favor. Courts in both New Mexico and Colorado have held that, because marijuana remains illegal under federal law, employers may terminate employees who fail drug tests due to legal medical marijuana use.

These cases suggest that the law remains on the employers’ side, but similar terminations are not risk-free due to the unsettled nature of the law. For instance, the New Mexico court noted the lack of express language in the state’s medical marijuana statute requiring employers to accommodate medicinal users. A similar case elsewhere might be decided differently if the state law contains an accommodation requirement. In addition, employers should consider the potential expense in defending ADA and FMLA claims, even if they are ultimately successful in doing so.

Employers in states allowing medical marijuana use should implement consistent prehire drug testing to try to minimize these problems and identify issues early, especially in high-turnover fields such as the hospitality and restaurant industries. Because some states prohibit drug testing until after a conditional offer of employment is made, however, employers should wait until after extending a conditional offer to drug test an applicant.

Employers might also designate certain positions as safety-sensitive to minimize their risk. Under the ADA, employers are not required to provide accommodations that are unduly burdensome or where an employee presents a direct threat to himself or others that cannot be eliminated by a reasonable accommodation. By designating an employee’s position as safety-sensitive, the employer bolsters its position that accommodating the employee’s medicinal marijuana use is unreasonable, is an undue burden or poses a direct threat.

If the issue does arise, it may be best to accommodate legal medicinal use where possible and on a case-by-case basis. This might include making exceptions to a drug-free workplace policy, making schedule modifications to allow an employee to medicate at home when needed or moving an employee who is a medicinal user to a non-safety-sensitive position. Such accommodations could help avoid litigation costs, even if the employer is likely to prevail under the current case law.