While most political attention is focused on the current primary season, one thing that may draw voters to the polls in November 2022 is cannabis. There are now six states that are poised to have residents vote on referenda to legalize recreational cannabis: Maryland, Ohio, Missouri, Arkansas, South Dakota and Oklahoma. Tennessee is also considering a non-binding ballot question asking three questions of voters relating to legalization of marijuana.
The Delaware House has passed legislation to remove all penalties associated with either the possession or the not-for-profit transfer of up to one ounce of marijuana by adults, although possession above this limit and the public consumption of marijuana would still be classified as a misdemeanor. In New Hampshire, political strategy is underway to pass legislation that would eliminate civil fines for minor marijuana possession and legalize the limited home cultivation of cannabis – the bill passed the House but failed in the state Senate, and is now being added to other legislation with a greater chance of passage this term.
South Carolina’s proposed legislation, the South Carolina Compassionate Care Act, which would allow qualifying patients to use, purchase, and possess medical cannabis with a physician’s recommendation, passed the state Senate but was killed this month on a procedural vote in the SC House. Meanwhile, in some states, medical cannabis laws are being altered. Utah and Ohio are both considering legislation to expand the pool of qualifying conditions to include “acute pain” that would otherwise be treated with opioids (in Utah) and to allow legal use by those diagnosed with an autism spectrum disorder (Ohio). South Dakota is looking to permit qualified medical patients to grow more plants for personal use.
Legislation just passed by the Colorado House and Senate streamlines and expands the record sealing process for those with marijuana-related records, and provides employment and tenant protections for those whose records have been sealed. Illinois is considering legislation to protect cannabis consumers from employment discrimination by limiting employers’ ability to either discipline or refuse to hire a worker because of positive drug tests for THC.
Meanwhile, a national survey in April 2022 from New Frontier Data found that 53 percent of Americans over 18 years of age acknowledge having consumed cannabis and 60 percent of active consumers were between 18 and 44 years of age. They were most likely to report consuming cannabis for the purposes of relaxation, reducing anxiety, and managing pain. This is obviously a critical segment of the workforce for construction, mining, and heavy industrial operations that may have many “safety sensitive” tasks that are inconsistent with impairment on the job from drugs, alcohol or other causes such as fatigue and stress.
Relaxation of cannabis laws will likely increase use in those states with more lenient laws. Moreover, federal legalization – which has growing bipartisan support - will require employers to consider accommodation of those who use cannabis medically under the Americans with Disabilities Act and further complicate workplace policies on cannabis use.
The bottom line is that while state legislatures are in season, cannabis legalization bills will be blooming like summer flowers. Employers in a multi-state environment must carefully monitor changes in the jurisdictions where they have worksites, and review any “legacy” policies that may no longer be legally effective in today’s changing cannabis world. For assistance with program review, contact Adele Abrams at safetylawyer@gmail.com.
