This blog was originally published in Forbes on November 3, 2020.
America saw a green wave sweep the country, with voters in three states, Arizona, Montana, and New Jersey, approving recreational marijuana, and voters in Mississippi approving medical marijuana. Voters in South Dakota advanced laws that legalize both medical and recreational marijuana. The result adds to a confusing patchwork of legislation for employers.
Current Marijuana Landscape
While decriminalization of marijuana is currently on the docket at the federal level, marijuana remains an illegal drug under the Controlled Substances Act. Progress within the states has been far swifter. As of Election Day 2020, the number of states that have legalized recreational marijuana increases to 15 plus Washington, D.C., and the number of states that have legalized medical marijuana increases to 35 plus D.C.
Voters in Arizona passed Proposition 207, The Smart and Safe Arizona Act, with 59.8% of residents approving the Act. While the effective date of the law is unclear, once implemented, individuals who are at least 21 years old will be able to purchase and use one ounce or less of marijuana in its raw form lawfully. The purchase and use of marijuana concentrate limited to five grams. Marijuana users with a green thumb may have up to six marijuana plants at their homes.
Arizona’s new law does not provide anti-discrimination rights for recreational users. Employers can continue to conduct drug testing for marijuana and disqualify candidates who are recreational marijuana users from hire based on a positive result. Employers are also not restricted from maintaining drug-free workplaces and are not required to “allow or accommodate the use, consumption, possession, transfer, display, transportation sale or cultivation of marijuana in a place of employment.”
Employers are reminded that Arizona has an existing medical marijuana law on the books. The Arizona Medical Marijuana Act was passed in 2010 and included an anti-discrimination measure. Therefore employers in Arizona must be cautious concerning the type of marijuana user when assessing drug tests that are positive for the drug.
In Montana, Initiative 190 passed, with 56.9% of voters approving recreational marijuana in the state. Montana’s new law legalizes the possession and use of one ounce or less of marijuana or eight grams or less of marijuana concentrate by persons over 21 in the state. Residents can also cultivate up to four seedlings and grow up to four mature plants.
Montana’s new recreational marijuana law is employer-friendly. Employers are not required to permit or accommodate recreational marijuana use in the workplace or on the employer’s property. Employers may discipline employees who violate their workplace drug policy or are under the influence of marijuana while at work. Employers may also adversely affect a recreational marijuana user’s employment. Montana’s recreational marijuana law becomes effective on January 1, 2021.
Montana’s medical marijuana law, which became effective in 2004, also does not require an employer’s accommodation of a registered cardholder’s lawful use of medical marijuana. Much like recreational marijuana, employers may prohibit the use of medical marijuana in the workplace.
New Jersey’s Public Question 1 was passed by an overwhelming majority, with 67.2% of voters approving the amendment to the state’s constitution. On January 1, 2021, New Jersey’s Constitution will be amended to legalize the purchase and recreational use of marijuana for persons at least 21 years old. Residential cultivation of marijuana is still prohibited under the amendment.
While Public Question 1 is silent on the issue of employer accommodation of recreational marijuana, to date, no recreational law that has passed has required an employer to permit recreational marijuana use while at the workplace. Employers should expect guidance on this issue from the state’s newly formed Cannabis Regulatory Commission and its lawmakers.
With recreational marijuana now available to individuals in the tri-state area, employers, particularly those in New York City, should be cognizant of the possible impact of marijuana on their workforces. Employers in New York City are reminded of a law that became effective on May 10, 2020, that prohibits pre-employment marijuana testing of prospective candidates as a condition of employment.
In 2019 New Jersey’s Jake Honig Compassionate Medical Cannabis Use Act was amended such that employers are prohibited from taking an “adverse employment action” against those who use medical marijuana. Additionally, the New Jersey Law Against Discrimination requires that employers provide reasonable accommodation to lawful medical marijuana users for their off-duty use of the drug. Notably, neither measure requires employers to accommodate on-premises or on-duty use of medical marijuana, which may provide insight for employers regarding the scope of the state’s new recreational marijuana law.
Voters in South Dakota passed Amendment A, with 53.4 % of voters approving an amendment to the state’s constitution to permit the purchase, possession, distribution, and use of up to one ounce of marijuana for individuals 21 years old and older. Residents will be allowed to grow up to six marijuana plants. South Dakota’s recreational marijuana law becomes effective on July 1, 2021.
South Dakota’s new law does not require that an employer “permit or accommodate” allowed by the legalization of recreational marijuana. It also does not affect an employer’s ability to “restrict the use of marijuana by employees.”
New Medical Marijuana Measures
Statewide Measure 1 was adopted in Mississippi, with 67.9% of voters deciding to legalize medical marijuana for qualified persons with debilitating medical conditions. Initiative 65 was also passed by 73.9% of voters who approved amendments to the state’s constitution to create a medical marijuana program administered by the state health department. Under the state’s new law, medical marijuana patients afflicted by any of 22 identified qualifying medical conditions could possess up to 2.5 ounces of marijuana over 14 days. Medical marijuana cards will begin to be issued no later than August 15, 2021.
Employers are not required to accommodate the use of medical marijuana or permit its use at the workplace, which means that an employer may adversely affect a lawful medical marijuana user’s employment if it is job-related and consistent with the business’s necessity. Drug testing is not affected by Mississippi’s new law.
Of note, Mississippi’s new law’s validity is already in question and may be reviewed by the state’s Supreme Court. Employers in Mississippi are advised to stay apprised of further developments.
South Dakota’s Measure 26 passed, with 69.9% of voters passing a law to allow medical marijuana use by patients who suffer from a debilitating medical condition as certified by a physician. Lawful medical marijuana cardholders are permitted to possess up to three ounces of marijuana compared to one ounce for recreational use. South Dakota’s new medical marijuana law becomes effective on July 1, 2021.
Employers in South Dakota are still permitted to conduct drug tests that include marijuana. However, medical marijuana cardholders are afforded the same rights as those prescribed a pharmaceutical medication concerning: employer interactions, employment drug testing, and drug testing required by any state or local law, agency, or government official. South Dakota’s medical marijuana law also does not apply to the extent that it conflicts with an employer’s obligations under federal law or regulation or if it would disqualify an employer from a monetary or licensing-related benefit under federal law or regulation. While an employer’s accommodation of medical marijuana use is not expressly stated, the construction of Measure 26 lacks clarity.
Employers are not required to permit the use of medical marijuana at the workplace or allow an employee to work while under the drug’s influence. However, “a registered qualifying patient may not be considered to be under the influence of cannabis solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.” Therefore, employers in South Dakota should proceed cautiously before adversely affecting a registered medical marijuana user’s employment due to evidence of impairment at the workplace.
A Patchwork of Progress
With progress towards marijuana decriminalization slowly being made at the federal level, voters in five states signal constituents’ desires to drive marijuana legalization at a faster pace. While laws passed by voters in 2020 are generally employer-friendly, new measures in New Jersey and South Dakota lack clarity. Employers should review their drug and alcohol testing, adjudication, and accommodation policies with their legal counsel to ensure compliance with these new laws. Experienced drug and health screening providers are available to work with employers to help craft testing programs that meet their organizations’ needs.