Addressing the uneven national approach to cannabis use in the workplace
How should workplaces view and treat marijuana use among employees when there isn’t a consistent national approach?
In the November 2020 elections, Arizona, New Jersey and South Dakota passed laws regarding marijuana. The uneven approach to marijuana use, growing and possession puts risk managers and in-house counsel at national organizations in an employment law quandary: How should workplaces view and treat marijuana use among their workforces when there isn’t an even and consistent national approach?
The right resolution depends on the employer, the employer’s state and the employer’s specific circumstances, of course. This article takes a short look at the new laws in Arizona, New Jersey, and South Dakota before outlining a general approach prudent national employers may want to consider.
Arizona
Arizona’s Proposition 207 legalizes limited possession and use of marijuana for adults 21 years or older and permits individuals to grow up to six marijuana plants in their residences. The law will go into effect on or before April 2021 after Arizona has issued the required licenses for recreational dispensaries.
From an employment standpoint, what is interesting about Proposition 207 is that it provides no employment protections. The Arizona Medical Marijuana Act (AMMA) prohibits employers from discriminating against valid AMMA cardholders. Proposition 207, however, does not provide similar protections for recreational users. Thus, employers in Arizona can take adverse action (e.g., not hiring, disciplining, discharging) against recreational marijuana users who test positive for marijuana components or metabolites if they are not AMMA cardholders.
New Jersey
New Jersey has joined a growing list of states that have legalized recreational marijuana. On Election Day, roughly two-thirds of New Jersey voters said “yes” to a ballot question asking whether the state constitution should be amended to legalize marijuana use. There are no immediate impacts for New Jersey employers, although that may change as the legislature begins the lengthy process for creating implementing legislation.
The amendment legalizes marijuana for adults age 21 and older and provides that the Cannabis Regulatory Commission created to oversee the medical marijuana industry also will have oversight of recreational sales. Unlike with medical marijuana use, New Jersey employers are not required to accommodate recreational marijuana use in or out of the workplace. However, the implementing legislation could change that.
Because there are many New Jersey residents who work in New York, New York employers who employ New Jersey residents should be aware of New York law, which does require accommodation of certain employee off-duty conduct. And these employers may therefore need to accommodate use of recreational marijuana by their employees who live in (or even travel to) New Jersey.
South Dakota
South Dakota voters approved Initiated Measure 26 (Measure 26) to legalize medical marijuana and also passed Constitutional Amendment A (Amendment A), which makes recreational marijuana use protected by state law. These new laws become effective July 1. However, the South Dakota Department of Revenue has until April 1, 2022, to issue rules and regulations related to the commercial sale, cultivation, and testing of marijuana.
Measure 26 legalizes the medical use of marijuana by qualifying patients. Patients must obtain a registration card from the state Department of Health. Cardholders may possess 3 oz. or less of marijuana and may obtain permission to grow their own plants. Measure 26 does not stop employers from prohibiting employees from working while under the influence of marijuana or using marijuana at the workplace. But Measure 26 requires that employers accommodate employees who use medical marijuana the same as employees who used prescribed prescription drugs, unless that would conflict with an employer’s obligations under federal law or regulations—such as truck and bus drivers, railroad and airline employees, transit system workers, and pipeline and hazardous material workers who are subject to Department of Transportation guidelines.
Amendment A legalizes the possession, use, transport, and distribution of marijuana for adults age 21 and older. Individuals may possess or distribute 1 ounce or less of marijuana. The state Department of Revenue will issue marijuana-related licenses for commercial cultivators and manufacturers, testing facilities, wholesalers and retailers, but local governments may regulate or ban the establishment of licensees in their communities. Amendment A does not stop employers from restricting the use of marijuana in the workplace or from firing employees who come to work under the influence of marijuana.
Nationwide considerations
Given the practical limitations of current medical testing, it may prove difficult for employers to address an employee’s potential impairment while on duty in states that have off-duty conduct rules. Test results may register as positive for days or even weeks after an employee has used marijuana, so testing will not clearly distinguish between current and prior impairment.
The number of employees using both medical and recreational marijuana is likely to continue to grow, leading to more requests for accommodations of marijuana use in the workplace. Unfortunately, unless and until marijuana is legalized at the federal level or state marijuana laws become more uniform, employers will face a complicated and ever-changing landscape. For now, employers should exercise caution in handling employee drug testing and requests for accommodation where marijuana could be involved, especially where marijuana use may be legal where the employees live but not where they work or vice versa. Given the constantly evolving law in this area, when presented with situations involving marijuana testing, accommodation, or discipline based on marijuana use or test results, employers should carefully evaluate the applicable statutes and decisional law of the relevant jurisdiction(s) and seek legal counsel as appropriate.
Employers in states where recreational marijuana has been legalized will also need to examine the practical implications of discouraging recreational marijuana workers from being employed at their companies. Employers in states like Colorado found that such policies would eliminate a number of potential job candidates, and perhaps encourage existing employees to quit.
Finally, given the employer’s right for an alcohol- and drug-free workplace, it is imperative for employers to update their policies, train supervisors and all personnel, and have consistent practices on what is and is not acceptable in the workplace. Clearly communicating with employees that the employer acknowledges that some coworkers will be partaking of recreational marijuana and that while the company understands that, bringing it to work, or being intoxicated while they are supposed to be working is unsafe and won’t be tolerated sends an authentic message. And disciplining poor performance, tardiness, or other misconduct based on the conduct and not the suspicion that the conduct was “caused” by marijuana will lead to fewer claims than drug testing or accusing a worker of intoxication, which is also very hard to prove.
Jay A. Zweig, a partner at Ballard Spahr, focuses his practice on employment law and commercial litigation. Contact him at Zweigj@ballardspahr.com.
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