As an increasing number of cases relating to the intersection of legalized marijuana and employment law are heard and decided by federal and state courts, it is only a matter of time before arbitrators begin to hear and decide such matters. For many arbitrators, particularly in states where medical marijuana has only recently been legalized, the legal landscape of state medical and recreational cannabis statutes and the disputes that arise in connection with them is relatively unknown territory. In order to provide arbitrators with a more solid grounding in cannabis law and the litigation it has spawned, this article will review the relatively brief history and current posture of legal cannabis litigation.
Caselaw has been relatively slow to develop in the states that have legalized marijuana in some form. Nonetheless, as more than two decades have passed since the first medical marijuana statute was passed in California in the mid-1990s, there is now a substantial enough body of state and federal caselaw to discern several patterns in terms of what employment law issues pertaining to legalized pot are being litigated and how courts are ruling on those issues. As of 2019, 33 states and the District of Columbia have legalized marijuana for medical purposes, and of these 10 have also legalized it for “general adult use,” including recreational purposes.