With the ever-changing landscape of marijuana laws, whether hotels should allow guests or employees to use marijuana may not be entirely clear. Currently, there are eighteen states plus the District of Columbia and Guam that allow recreational use of marijuana and nineteen other states that allow medicinal use. However, marijuana is still technically illegal under federal law and considered a Schedule 1 substance under the Controlled Substances Act.
Many states have enacted laws that prohibit smoking in public places or the workplace. Accordingly, smoking marijuana in and around the common areas of a hotel would be prohibited by such laws. However, there is an expectation of privacy in a hotel room. So, can a guest smoke marijuana in a guest room? It depends.
“Smoking rooms” may not be what they seem
Some hotels continue to have smoking rooms (although these seem to be declining in number) so if recreational marijuana is legal or a guest legally possesses medicinal marijuana, smoking may be permitted in such rooms. However, hotels are free to enact policies that protect the health and safety of their guests. Accordingly, many hotels have enacted “no smoking” policies that apply to the entire hotel including guest rooms and cover both tobacco and marijuana smoking. This could be driven by the brand. For example, Marriott and IHG are two brands that have a no smoking policy for all hotels in the United States although outside designated smoking areas may be available. But individual hotel owners are also free to institute such policies independent of brand considerations which can be based on issues unrelated to health and safety such as the threat of property damage (from the odor of smoke) or the increased labor costs to clean a room that smells like smoke. No smoking policies also don’t have to make an exception for medicinal use of marijuana. But even if a hotel allows smoking, it will likely be limited to certain areas (such as certain floors, the balcony or by the pool), and could involve other limitations such as on the quantity that can be consumed.
Marijuana and tobacco – critical differences
Although smoking tobacco products and marijuana may be similar in many respects, there are some differences that should be considered. While tobacco is a legal substance, under federal law, marijuana is not and allowing an illegal activity on hotel premises could potentially cause issues with other business relationships such as with brands, lenders and/or liquor license authorities. Marijuana can also be consumed in a variety of ways that don’t implicate smoking laws or policies. Vaping and e-cigarettes can be addressed in the hotel’s smoking policy (do so clearly), but marijuana can be ingested in foods. Short of searching guests (which is not a reasonable option), again, the hotel can protect itself by having a clear policy on drug use that specifically identifies all marijuana products. There’s also the public perception. While marijuana use is becoming more socially acceptable, some guests may make certain assumptions about a hotel if hit with the smell of marijuana at the door (or upon landing in the airport, have you been to Vegas lately?) so when determining marijuana policies, hotels also need to consider how to make all guests comfortable.
While this article focuses on restrictions a hotel can impose on marijuana usage, there are hotels on the other end of the spectrum however, i.e., those that happily welcome marijuana use (subject to compliance with applicable state laws of course). You can find a list of them on www.budandbreakfast.com.
An interesting and related situation is that the city of New York allowed guests staying in COVID quarantining hotels to bring their marijuana with them for use under strict regulation but prohibited the consumption of alcoholic beverages.
Employee marijuana use – it’s complicated
Another area fraught with complexity is how hotels should address employees who use marijuana either recreationally or for medical reasons. Because marijuana is still illegal under federal law, there are no protections available for recreational use and Americans with Disabilities Act and the Family Medical Leave Act do not apply to medicinal use. Currently, there are only two states (Nevada and New Jersey) that have enacted laws prohibiting employment discrimination based upon recreational use with certain limited exceptions. A number of states have laws prohibiting employment discrimination based upon medicinal use, but only one (Nevada) requires any type of accommodation; although other laws may be reasonably interpreted to require accommodations and case law may impose requirements not clearly stated in the laws.
The laws that prohibit employment discrimination generally provide that if the employee isn’t partaking at work and the usage doesn’t create a safety issue (and the job isn’t a federal position), employment decisions cannot be based upon marijuana use. Under the Nevada law requiring accommodations, an employer is not required to change an employee’s job or working conditions but is only required to make reasonable accommodations subject to employer hardship and safety considerations. Finally, New York city and Philadelphia have also prohibited employers from conducting pre-employment drug testing, again, subject to certain exceptions. As with guest usage, hotels should have clear policies in place that inform employees what is and is not permissible. And what is permissible may take into account the current labor market and the ability to hire employees if a zero-tolerance policy is in place.
Marijuana laws are constantly changing and are likely to do so for years to come so it is very important for hotels to remain well informed and advised of current marijuana legislation and related case law. But at the end of the day, the focus should be on the safety of employees and guests.
Tara Lattomus helps clients negotiate hotel and resort management agreements with an eye towards avoiding future disputes and litigation. Tara’s experience allows her to understand the broad range of issues that can arise in the context of both new-build and transitioning properties and draft agreements that provide her clients with the broadest protections. She represents both large and mid-size management companies, and appreciates that different clients may have different priorities. By working daily with general counsel and other business associates, Tara has developed a real-world approach to her practice that provides great value to her clients.
Tara has been in the firm’s Delaware office since it opened in 2005. Since that office started small, Tara had the opportunity to practice in a number of areas and continues to keep her diversified practice to this day. She routinely advises clients involved in bankruptcy cases and assists with other transactional matters.