New Laws And The 2021 Cannabis Effect On Employers
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In the primary 4 months of 2021, quite a few states, together with
Virginia, New Mexico, New York and New Jersey handed legal guidelines
dismantling restrictions on leisure and medical cannabis.
Employers in these states are elevating questions on whether or not the
new legal guidelines have an effect on their insurance policies and views towards cannabis use.
The following briefly summarizes the brand new payments in every
- Virginia passed a law taking impact in July 2021 that
eliminates felony penalties for easy possession of marijuana
and gives a course of to expunge convictions mechanically for
sure marijuana-related crimes. The invoice additionally creates a Virginia
Cannabis Control Authority, which can regulate the cultivation,
manufacture and sale of retail marijuana.
- New Mexico passed a law taking impact in June 2021 that
legalizes leisure marijuana use and gross sales. Under the regulation,
individuals over 21 shall be allowed to have as much as 2 ounces of marijuana,
and people may have six vegetation at dwelling, or as much as 12 per
family. The regulation additionally creates a Cannabis Control Division of the
New Mexico Regulation & Licensing Department to manage and
license marijuana distribution.
- New York passed a law efficient March 21, 2021, that
legalized using marijuana for adults 21 and older, and set
forth a framework for the sale of marijuana to start in 2022. The
regulation created two state businesses to manage the state’s
marijuana packages: the Cannabis Control Board and the Office of
- New Jersey passed a law that took impact on Feb. 22,
2021, that legalized the sale, use and possession of leisure
marijuana for people 21 and older. The regulation additionally created the
Cannabis Regulatory Commission, which, along with regulating
the cultivation, manufacturing, manufacture, transportation and
supply of marijuana, will prescribe a certification needed for
employers to drug check and establish impairment in workers.
Effect on Employers
As state legislatures develop the rights of people, these
rights will inevitably trigger rigidity with some employers’
need to take care of a drug-free office. Questions employers
continuously ask embrace: Can we proceed testing candidates and
workers for marijuana? Are workers allowed to be impaired at
work? Must we permit workers to own marijuana at work? Can I
terminate an worker who makes use of cannabis off obligation?
States supply completely different approaches to a few of these
- Virginia’s new leisure cannabis regulation is silent
concerning its impact on the employer-employee relationship.
Accordingly, till the commonwealth points extra regulatory
steering, the regulation doesn’t change usually accepted rules
about how employers can management their workplaces. For instance, the
regulation doesn’t prohibit employers from testing candidates for
marijuana, and employers can proceed prohibiting possession and
impairment within the office. No precedent expressly states whether or not
an employer should accommodate a person’s use of medical
marijuana in Virginia.
- A second law Virginia enacted in 2021, nevertheless,
prohibits employers from discriminating towards workers who use
cannabis oil, as long as workers have legitimate written certification
issued by a practitioner to deal with signs of sure circumstances.
However, employers can nonetheless prohibit impairment attributable to cannabis
oil and might prohibit possession throughout work hours. The regulation additionally
doesn’t require employers to do something that may outcome within the
violation of federal regulation, lose a federal contract, lose federal
funding, or require U.S. Cybersecurity and Infrastructure Security
Agency protection industrial base sector employers to rent somebody who
checks optimistic for tetrahydrocannabinol (THC). As previously reported, Virginia additionally prohibits
employers from requiring job candidates to reveal info
regarding any arrest, felony cost or conviction for easy
possession of marijuana.
- New Mexico’s regulation permits employers (within the absence of an
settlement on the contrary) to implement a written zero-tolerance
drug coverage that prohibits workers from testing optimistic for THC.
Importantly, nevertheless, the regulation doesn’t limit rights afforded to
medical marijuana customers beneath state regulation. As a outcome, with restricted
exceptions, an employer continues to be prohibited from taking an opposed
motion towards an applicant or worker on the premise of the
particular person having a prescription for and/or utilizing medical
- New York’s regulation protects workers’ marijuana use that
happens exterior of working hours, off the employer’s premises,
and with out use of the employer’s gear or different property
beneath the identical regulation defending workers’ authorized recreational activities outside work. Notably,
the regulation doesn’t forestall an employer from taking motion the place: (a)
the employer’s actions had been required by state or federal regulation;
(b) the worker is impaired by way of marijuana whereas working,
which requires the worker to have “particular, articulable
signs” that impair the worker’s efficiency or
intrude with the employer’s obligation to offer a secure and
wholesome office; or (c) the employer’s actions would violate
a federal regulation or would outcome within the lack of federal contract or
- New Jersey’s regulation contains expansive protections for all
workers who use medical marijuana. Employers might not take opposed
motion towards an worker who makes use of marijuana, or due to the
presence of marijuana within the worker’s system. Further, the
statute prescribes the circumstances beneath which an employer might
drug check an worker, however requires, amongst different issues, that the
check embrace “a bodily analysis with the intention to decide an
worker’s state of impairment” carried out by a Cannabis
Regulatory Commission-certified particular person.
- None of the brand new legal guidelines require employers to permit workers to be
impaired at work or possess or eat cannabis within the office or
whereas on the job.
Interaction With Other Laws
In addition to the problems employers face controlling their
workplaces, employers should pay attention to how new cannabis legal guidelines
work together with different state and federal legal guidelines.
- Reasonable Accommodations: In some
circumstances and in some jurisdictions, an employer should grant an
worker’s request for an affordable lodging if the
worker has a incapacity beneath state regulation. This is a
state-dependent challenge, and the states are break up on the problem. For
instance, states that allow employers to terminate workers for
utilizing marijuana no matter their disabilities embrace
California, Colorado, Florida, Georgia, Mississippi, Montana, Ohio,
Oregon and Washington. States that present a personal proper of
motion for failing to accommodate use to deal with a incapacity (or
in any other case require accommodating medical marijuana use) embrace
Arizona, Arkansas, Connecticut, Delaware, Maine, Massachusetts,
Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma,
Pennsylvania, Rhode Island and West Virginia. State statutes and
case regulation are topic to vary, so employers ought to seek the advice of with
counsel when confronted with any request for an lodging to
- Federal Drug-Free Workplace Laws: The
Drug-Free Workplace Act (DFWA) requires sure federal contractors
and federal grant recipients to take care of drug-free workplaces. This
requires a office the place workers are prohibited from
manufacturing, distributing, possessing or utilizing managed
substances. Courts have held that the DFWA doesn’t prohibit
federal contractors from using somebody who makes use of unlawful medicine
exterior the office. Accordingly, federal contractors and
grantees could also be required to adjust to state regulation and this federal
- Commercial Drivers: Employers ruled by the
U.S. Department of Transportation, together with firms that make use of
people who drive beneath a industrial driver’s license, should
bear in mind the DOT’s sturdy rules concerning drug
testing and possession. The DOT has made clear on multiple occasions that states’
legalization of marijuana has not modified the DOT’s
drug-related rules. Accordingly, the DOT expects employers to
proceed following federal regulation with respect to DOT-regulated
- Collective Bargaining Agreements: Employers
topic to a collective bargaining settlement ought to do not forget that
altering drug testing or drug use insurance policies could also be prohibited
with out negotiating with the bargaining unit.
Employers ought to routinely evaluate their drug use and drug
testing insurance policies to make sure they continue to be compliant with ever-changing
state and native legal guidelines.
The content material of this text is meant to offer a normal
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.
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