On Election Day, voters in Arizona, Montana, New Jersey, and South Dakota legalized recreational use of marijuana. South Dakota, along with Mississippi, also approved medical marijuana. In Oregon, voters decriminalized — but not legalized — all drugs, including cocaine and heroin. While not legalized federally, 35 states have now legalized marijuana for medical use and 15 states have legalized recreational use.
Also, in Oregon, voters legalized the use of psilocybin, a psychedelic drug found in magic mushrooms, for supervised therapeutic uses. In Washington, DC, voters in effect decriminalized psychedelic plants. Oregon also passed a measure that decriminalizes 110 hard drugs, including heroin, cocaine. Proponents say that decriminalization supports rehabilitation.
Notably, in every state where marijuana legalization was on the ballot, it passed. However, in a reversal of fortune for legalized marijuana the Nebraska Supreme Court ruled that the medical marijuana ballot initiative was unconstitutional and the ballot was pulled from the 2020 November election. The decision came in response to a lawsuit filed by opponents arguing that the measure violated the state’s single-subject rules.
Where cannabis is permitted, laws vary from state to state, so employers should review their policies and practices to ensure compliance with the new state laws. One certainty for employers is that no state requires employers to accommodate on-the-job marijuana use. States that have already legalized medical marijuana, but have now allowed recreational use of marijuana have some of employment regulations in place. For those states which just passed marijuana legislation, below is a summary of their related employment laws:
Arizona
· Does not restrict the rights of employers to maintain a drug-and-alcohol free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees.” Section 36-2851(1).
· Does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment.” Section 36-2851(2).
· Does not restrict the rights of employers … to prohibit or regulate conduct otherwise allowed by this chapter when such conduct occurs on or in their properties.” Section 36-2851(6).
Mississippi
· It is yet to be determined how Mississippi’s medical marijuana laws will impact employers and employees. Undoubtedly, employers will not be required to accommodate use in the workplace. This is an emerging area.
Montana
· Employers may prohibit use of marijuana in the workplace.
· An employer is not required to accommodate use of marijuana by a registered cardholder in the workplace.
· Although employers are not specifically mentioned, the law addresses licensing boards and the Montana Department of Labor and Industry stating that a legal medical marijuana patient cannot be penalized, denied any right or privilege for their status as a cardholder, use, or possession unless their use hinders their job-related performance and then he or she may receive penalties or discipline.
· Montana has a drug testing law with detailed restrictions with which an employer needs to comply if they are going to do drug testing, including definitions around subjected employees, policy, notice and testing requirements, training and education requirements, and more.
New Jersey
· Employers are prohibited from taking adverse employment action against an employee or applicant “based solely on the employee’s status” as a registered medical marijuana patient. The new law defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”
· Employees and job applicants who use lawful medical marijuana off premises and during non-working hours are now expressly protected from discrimination.
· The employer must provide the employee or applicant with written notice of a positive test result and notify him or her of his or her right to explain the positive drug test result by presenting a “legitimate medical explanation” within three workdays.
· Employers are not required to accommodate use of medical marijuana in the workplace.
South Dakota
As with Mississippi, this is the first time South Dakota has legalized any form of marijuana so there is no guidance on how it will impact employers or employees.
Oregon
· Employers are not required to accommodate the use of medical marijuana in the workplace.
· Employers may fire or discipline employees for testing positive for marijuana, even if the use was off duty and with a valid medical marijuana card.
· Applicant testing permitted if there is reasonable suspicion applicant is under the influence of alcohol or controlled substance.
In states in which medical marijuana has been legalized, employers should be aware that there may be a potential duty to accommodate. In addition, it appears that in states where the use of recreational marijuana is legal, the trend has been to move away from pre-employment testing for marijuana, especially by employers that are not governed by federal regulations (e.g., the U.S. Department of Transportation’s regulations) or that do not have large populations of safety-sensitive employees. While pre-employment testing for marijuana is largely a business decision for organizations, employers may want to continue to maintain post-employment testing for marijuana, such as for reasonable suspicion, even if marijuana is legalized for recreational use. When effective marijuana impairment tests are available (several companies have marijuana impairment tests in development), employers will have more options for addressing employees’ marijuana use and determining whether an employee is “fit for duty.”
The sands of marijuana legalization are ever shifting. Employers should monitor these developments with an expectation that legalization efforts will continue in the years to come. If you need help navigating this area, we specialize employment, health and safety law and compliance assistance. We can assist in updating your substance abuse prevention programs to reflect the recent changes to the law in the cannabis area.
