Wisconsin Bill Would Decriminalize Marijuana, But It’d Still Be Illegal

February 21, 2022

A recently introduced Wisconsin bill proposes to decriminalize marijuana and includes a provision limiting an employer’s liability for not testing employees. The bill doesn’t prevent employers from testing employees, however, or disciplining them for testing positive for marijuana use.

Current Law in Wisconsin

Possessing any amount of marijuana is currently illegal in Wisconsin, even for medical purposes. A first conviction is a misdemeanor crime punishable by up to $1,000 in fines or up to six months in prison, or both. A subsequent violation is a Class 1 felony including fines up to $10,000 or imprisonment for up to three years and six months, or both.

Wisconsin employers can legally require employees to submit to a prehire drug test and decline to hire persons who test positive for THC (the euphoria-inducing compound in marijuana). You also may terminate employees who test positive for THC. You must perform any testing in a nondiscriminatory manner, however, or risk an action for disparate treatment.

Senate Bill 790

On December 17, 2021, a coalition of bipartisan senators and representatives introduced Senate Bill (SB) 790, attempting to decriminalize marijuana in Wisconsin. The bill seeks to:

  • Reduce the penalty for possession of 14 ounces or less of marijuana from a criminal misdemeanor to a civil forfeiture of $100 (or the equivalent of a parking ticket);
  • Limit an employer’s liability for not requiring testing for marijuana use as a condition of employment; and
  • Do away with increasing the penalties for subsequent violations.

The rationale behind the bill is the reduction of resources committed to arresting, booking, prosecuting, and punishing violators and removing the life-long stigma of a felony conviction. Laws legalizing marijuana in other states go much farther by permitting citizens to possess the drug legally for medical and recreational use while collecting significant tax revenue from sales and licensing. The current proposal is different because marijuana remains illegal, even for medical use.

Employer Immunity

The bill includes a provision aimed directly at employers. If you don’t require an employee or prospective employee to submit to a test for the presence of THC as a condition of employment, you are granted immunity from liability. The provision appears intended to quiet the concern of employers about vicarious liability for their employees’ acts if they fail to test for marijuana use. Presumably, employers would reject fewer applicants or fire fewer workers who use marijuana if they required less testing.

The employer liability provision includes exceptions, however, clearly reflecting that marijuana remains an illegal, Schedule 1 substance under the federal Controlled Substances Act. For example, those who employ commercial drivers license (CDL) drivers must continue Department of Transportation (DOT) drug-testing programs for them. Similarly, employers that contract with the federal government or receive federal grants aren’t immune under the proposed bill.

Employers May Continue to Test

The proposed bill stops short of requiring private employers to modify or eliminate policies that forbid  marijuana ue in the workplace or subject employees who test positive for the drug to termination. You remain within your rights to require a drug-free workplace and test employees for drug and alcohol use.

It seems reasonable to conclude that if the bill becomes law, the reduced legal risk may result in increased marijuana use. Uninformed employees who are subject to random drug testing but believe the bill allows for recreational or medical use of marijuana outside of the workplace will risk losing their jobs. Unlike alcohol, which the body metabolizes and is generally undetectable in urine within 24 to 48 hours of consumption, THC is detectable in urine for several days to a month after marijuana use.

An employee may consume moderate amounts of alcohol while off work and pass a urine test. An employee who uses marijuana in a similar fashion, however, will likely test positive for THC. It also remains impossible for an employer to know when the employee last used marijuana or whether the employee is still under the influence of the drug.

Bottom Line

While SB 790 includes an employer immunity provision seeking to limit an employer’s vicarious liability for not testing for marijuana in the workplace, marijuana will remain illegal in Wisconsin and an illegal Schedule 1 drug under the federal Controlled Substances Act. In addition, employers regulated by federal agencies, such as the Federal Motor Carrier Safety Administration, are unaffected by the bill’s grant of immunity and must continue to comply with federal testing requirements.

Wisconsin employers not subject to federal requirements for drug testing remain free to determine what testing program or drug policy to apply to their place of business, even if the bill becomes law.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.