Only days after California started selling recreational pot, which had been legalized under state law, CNN reported that Attorney General Jeff Sessions will announce that he is rescinding Obama-era guidance that had set forth a policy of federal non-interference with state legalization laws. This action further complicates an already confusing situation for employers struggling with how to navigate the battling federal and state laws on the workplace impact of marijuana use.

Marijuana use is illegal under the federal Controlled Substances Act. It is clear that federal contractors (who are subject to the Drug-Free Workplace Act) and employers with employees subject to the Department of Transportation regulations (which includes drug testing obligations) may terminate employees who test positive for marijuana use. It is also clear that, although the federal Americans with Disabilities Act requires employers to provide reasonable accommodations to disabled employees and applicants, permitting the medical use of marijuana is not a reasonable accommodation.

But 29 states and the District of Columbia have passed laws that permit the medical use of marijuana. And another 16 states have legalized the medical use of cannabis extracts. Many of these laws contain non-discrimination employment protections for valid medical marijuana users, and have raised the issue of whether employers must accommodate the use of medical marijuana under state disability laws.

Up until last year, the federal and state courts had consistently held that employers need not accommodate the medical use of marijuana – even off-duty – and could freely terminate any employee who tested positive for marijuana use. But a new trend has recently developed in the state courts. As we previously blogged in Do Employers Have to Provide Accommodations for Medical Marijuana Use?, a Massachusetts state court in Barbuto v. Advantage Sales and Marketing, LLC, permitted an employee to bring claims under the Massachusetts disability law for discrimination and failing to reasonably accommodate her off-duty medical marijuana use. The court specifically rejected the employer’s argument that the accommodation could not be reasonable since it violated federal law, noting that it was not the employer who would be in violation. Following that decision, two other courts have recognized similar claims under their states’ laws: Callaghan v. Darlington Fabrics Corp., (R.I. Super. Ct., 2017) and Noffsinger v. SSC Niantic Operating Co. LLC, (D. Conn., 2017). Based upon these decisions, employers would be required to consider whether it would need to provide an accommodation for medical marijuana use, instead of simply denying any such accommodation based on marijuana’s illegality under federal law. (By the way, the recreational use of marijuana is not subject to the same workplace protections.)

But Attorney General Sessions’ actions have now brought further uncertainty to the situation. Will state marijuana legalization laws be challenged by the federal government? Does that mean that employers will no longer have to worry about compliance with those state laws? It appears that Attorney General Sessions will take an aggressive stance with regard to these laws. At a press conference in November, he stated, “It’s my view that the use of marijuana is detrimental and we should not give encouragement in any way to it. And it represents a federal violation which is in the law and is subject to being enforced.” (In 2014, Congress passed the Rohrabacher-Bluemenauer Amendment, which prohibits the DOJ from using federal funds to interfere with the implementation of state medical marijuana laws – but that provision must be renewed annually and the Trump administration’s evident interest in cracking down on marijuana use may affect its future).

We must await further guidance from the Attorney General and the Department of Justice on the status of these state laws. But in the meantime, we know the following: Government contractors and those employers subject to DOT regulations can prohibit marijuana use by employees altogether. All employers can prohibit marijuana use or being under the influence of marijuana in the workplace. But whether employee’s off-duty use of medical marijuana must be permitted – that’s all pretty hazy right now.