As a wave of marijuana legalization continues to brush the nation, employers (particularly these with multi-state operations) should grapple with its influence on their operations and workforce.
The majority of states and the District of Columbia now allow some type of authorized leisure or medicinal marijuana use. Fifteen of these states, in addition to the District of Columbia and a few cities, prohibit employers in some kind or vogue from testing for or taking hostile employment actions based mostly on an worker’s authorized marijuana use. With comparable laws pending in numerous states, the patchwork of legal guidelines affecting employers’ rights and obligations with respect to worker marijuana use will proceed to develop extra advanced.
Credit for photograph: National Conference of State Legislatures, State Medical Marijuana Laws, https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx (April 5, 2021).
Amongst this patchwork of state legal guidelines, some frequent themes and takeaways have emerged:
- Federal legislation preempts inconsistent state legal guidelines – Employers with drug testing protocols mandated by federal legislation (corresponding to Department of Transportation rules) are seemingly exempt from inconsistent necessities imposed by state legislation.
- Employers can regulate possession and use within the office – Despite rising state legislation protections for workers partaking in marijuana use, employers nonetheless usually retain the correct to take care of a drug free work surroundings, and prohibit use and consumption within the office.
- Employers can regulate office security – Employers nonetheless could prohibit staff from displaying as much as work or performing their jobs whereas impaired. In addition, in states that do have sure testing necessities, employers are usually nonetheless in a position to conduct marijuana testing of staff in security delicate positions.
Some examples of at the moment pending laws affecting employers’ rights and obligations with respect to marijuana use embody the next:
CALIFORNIA ASSEMBLY BILL 1256
Introduced on February 29, 2021, Bill 1256 remains to be working its means via the committee course of. If handed, as at the moment written, this proposal would particularly forbid an hostile employment motion when staff have “nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids.” Under Bill 1256, employers who’re required to check for THC by federal legislation, or those that would “lose a monetary or licensing-related benefit” for failing to check for THC, nonetheless can be allowed to behave based mostly on check outcomes. The invoice would exempt employers within the “building and construction trades.” Bill 1256 will be seen and tracked here.
DISTRICT OF COLUMBIA BILL 309
Mayor Bowser signed Bill 309 on December 17, 2020, and it’s projected to turn into legislation round May 24, 2021. This laws protects authorities staff from discrimination ensuing from medical marijuana use. However, to qualify for the safety supplied in Bill 309, staff should be enrolled in D.C.’s medical marijuana program and be a public worker. Bill 309 will be seen and tracked here.
FLORIDA SENATE BILL 1820
Several payments are at the moment engaged within the legislative course of in Florida. Most notably, Senate Bill 1820 seeks to alter Florida’s present medical marijuana legal guidelines in a number of methods. The invoice seeks to ban hostile actions towards staff who lawfully use medical marijuana, and extends safety to these staff with medical marijuana playing cards obtained from different states. Employers required by federal legislation to check for drug use, or who’re required to check to obtain a “federal contract or federal funding” nonetheless are allowed to conduct drug assessments and take hostile motion towards staff who use marijuana, whatever the medical marijuana standing. Senate Bill 1820 will be seen and tracked here.
HAWAII SENATE BILL 64
Senate Bill 64, referred to committee on February 19, 2021, prohibits employers from discriminating towards an individual based mostly on a person’s standing as a medical cannabis cardholder. However, employers “may use a fit-for-duty test for medical cannabis qualifying patients in potentially dangerous occupations.” Bill 64 doesn’t apply to a listing of particular safety-related positions, together with those that function heavy equipment or transport 16 or extra passengers. Employers who’re required by federal legislation to check for THC, or who obtain federal funding, are also exempted. Senate Bill 64 will be seen and tracked here.
MASSACHUSETTS HOUSE DOCKET 3914
Massachusetts already gives staff safety from discrimination based mostly on marijuana use in sure conditions. On February 19, 2021, Massachusetts home legislators launched a invoice looking for additionally to ban the usage of urine, blood, and “other body sample” testing as a foundation to discriminate towards staff. Legislators search to require employers to search for “demonstrable probable cause to believe that the person is impaired at work by reason of cannabis consumption and has cause, or is at imminent risk to cause, harm to a fellow employee, customer, or the public due to such impairment.” Bill 3914 will be seen and tracked here.
MARYLAND SENATE BILL 504
Senate Bill 504 is pending earlier than the Senate Judicial Proceedings Committee. This proposal seeks to stop employers from discriminating towards staff who’re part of the state’s medical marijuana program. The laws explicitly exempts employers who’re required by federal legislation to check or to obtain funding. Bill 504 will be seen and tracked here.
NEW JERSEY SENATE BILL 3525
Senate Bill 3525 was launched on March 9, 2021 and is working its means via the committee course of. New Jersey staff already obtain some safety from discrimination based mostly on marijuana use, however Bill 3525 would prohibit testing as a part of pre-employment screening, and prohibit discrimination towards staff based mostly on marijuana use with varied exceptions, together with, just like the Maryland proposed laws, employers who’re required by federal legislation to check or to obtain funding. Interestingly, this proposal permits New Jersey employers to rent a “Workplace Impairment Recognition Expert” to establish staff who show-up to work intoxicated from marijuana use. The laws additionally permits employers to “remain free to use scientifically reliable testing services and to exercise [their] own judgment in making a good faith suspicion determination.” Bill 3525 will be seen and tracked here.
RHODE ISLAND HOUSE BILL 5021
Medical marijuana customers in Rhode Island already obtain some safety from discrimination. On January 13, 2021, members of the Rhode Island House of Representatives launched Bill 5021, which seeks to stop employers from utilizing drug assessments for medicinal marijuana use as a foundation to “refuse to hire, discharge, or otherwise, discriminate” towards medical marijuana cardholders. Employers who’re federal contractors, or in any other case required to check by federal legislation, are allowed to proceed utilizing assessments as a foundation for taking hostile employment actions. The invoice additionally explicitly permits hostile employment actions if an worker is impaired at work—or possesses marijuana on his/her employer’s premises. Bill 5021 will be seen and tracked here.
TENNESSEE HOUSE BILL 1330
Currently earlier than the Banking & Consumer Affairs Subcommittee, Bill 1330 seeks to stop discrimination based mostly on each medical and leisure use of marijuana when staff are off-the-clock. Bill 1330 excepts “safety sensitive” positions and federal necessities. If handed, the act would take impact on July 1, 2021. Bill 1330 will be seen and tracked here.
VIRGINIA HOUSE BILL 1862
Governor Northam of Virginia signed Bill 1862 into legislation on March 25, 2021. This new enactment will shield medical marijuana customers from hostile employment motion, however gives exceptions for employers’ compliance with federal legislation and funding necessities. Employers nonetheless can limit possession on their premises, and forestall staff from working whereas underneath the affect. The legislation takes impact on July 1, 2021 and will be seen here.
As with most state employment legislation points, the info, circumstances, and particular jurisdiction will dictate how employers deal with particular eventualities. Employers formulating their method to marijuana use by staff ought to seek the advice of present assets to make sure compliance with the ever-changing state and federal marijuana legislation panorama.