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Changing Marijuana laws: what employers need to know

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Continuing the trend in recent years of marijuana legalization, the November 2020 elections resulted in four additional states legalizing recreational marijuana and two states legalizing medical marijuana, and two other drug-related initiatives. Below, we summarize changes that employers should know, and pertinent workplace information.

States that legalized medicinal marijuana use in  November

Mississippi 

Mississippi added medical marijuana via Initiative 65, which establishes a medical program for those with debilitating medical conditions as defined in the law. The program will be implemented by July 1, 2021, and the issuing of cards will begin no later than August 15, 2021.

Guidelines for employers

  • There is no guidance offered for employers as passed, however, Initiative 65 includes language that any additional rules and regulations pertaining to the program (such as potential workplace guidance) must be issued by the implementation date. 

South Dakota

Measure 26, legalizing medical marijuana, is effective October 29, 2021. In order to qualify, individuals must have a physician-certified debilitating medical condition. Program participants are prohibited from undertaking “…any task under the influence of cannabis when doing so would constitute negligence or professional malpractice.”  

Guidelines for employers

  • Under Measure 26, they do not require employers to permit medical marijuana ingestion in the workplace or employees working while under the influence of marijuana.

  • Qualifying patients are not to be considered under the influence solely because of the presence of marijuana metabolites or components that appear in “…insufficient concentration to cause impairment.”

  • If an employer would be disqualified from a monetary or licensing-related benefit due to obligations under federal laws or regulations due to compliance with the medical marijuana program, they are not required to comply. 

States that legalized recreational marijuana use in  November

Arizona 

Arizona added recreational marijuana to its existing medical marijuana program via Proposition 207, requiring that a regulatory framework for recreational sales be established by April 5, 2021. While Prop 207 will be effective as soon as all votes have been counted, certified, and the Governor issues a proposition making the initiative law, it is unlikely that recreational sales will begin until half way through 2021.  Under the new law, individuals 21 and older are permitted to possess, consume, and transfer marijuana.

Guidelines for employers

  • Employers are not required to accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivation of marijuana in the workplace.

  • Employers are not restricted in their ability to prohibit or regulate conduct that is permitted by Prop 207 when such acts occur on business property.

  • Additionally, driving while “impaired to even the slightest degree by marijuana” is strictly prohibited. 

Montana 

Montana passed two recreational marijuana initiatives, Initiative 190 and Initiative 118. Initiative 118 amends the state constitution to establish a minimum age of 21 for recreational marijuana market participation.  

Initiative 190 will be partially effective on January 1, 2021, and fully effective on October 1, 2021. It contains much of the framework for the recreational marijuana program and provides some guidance for employers.

Guidelines for employers

  • Under Initiative 190, employers are not required to permit or accommodate recreational marijuana in the workplace or on work property.

  • Employers can discipline or take adverse employment action against employees for the violation of a workplace drug and alcohol policy.

  • Employers can discipline employees that work while intoxicated by marijuana and can deny an applicant a position based on the violation of a workplace drug and alcohol policy. 

New Jersey 

New Jersey Public Question 1 passed recreational marijuana legalization and will be effective on January 1, 2021. Under Question 1, the possession and use of marijuana is legal for those ages 21 and older.

Guidelines for employers

  • As passed, there is no information for employers or pertaining to the regulatory framework – it is likely that the legislature will quickly begin providing guidance in the form of new laws. 

South Dakota 

South Dakota made history by becoming the first state to legalize both recreational and medical marijuana at once. Amendment A, legalizing recreational marijuana for individuals 21 and older, requires the legislature to pass additional laws pertaining to the medical marijuana program by April 1, 2022.

Guidelines for employers

  • Under Amendment A, employers are not required to accommodate the use of recreational marijuana and are not limited in their ability to restrict an employee’s use of marijuana.  

Special notes on Oregon and Washington, D.C 

Oregon  

Oregon has become the first state to move toward full legalization of all drugs with the passage of Measure 109 and Measure 110. Measure 109 authorizes a program permitting licensed service providers to administer psilocybin-producing mushrooms and fungi (commonly known as magic mushrooms) to individuals ages 21 and older. The state is required to develop standards for dosing, labeling, and packaging psilocybin and must develop the program in its entirety within two years of the measure’s passage.  

Measure 110 classifies the possession of a Schedule I to IV controlled substance as a violation that may result in a fine  or, in lieu of the fine (for a class e violation), a completed health assessment. All health assessments must be performed through an addiction recovery center and include a substance use disorder screening. Measure 110 is effective on February 1, 2021. 

Washington, D.C. 

D.C. Initiative 81 designates the non-commercial cultivation, distribution, possession, and use of entheogenic plants and fungi (such as magic mushrooms) as the lowest law enforcement priority. Initiative 81 will become effective following a 30-day period of Congressional review and publication in the D.C. register.