It was a mixed bag for marijuana ballot initiatives during this year’s elections. Voters in two states (Maryland & Missouri) approved the legalization of adult use of marijuana, while similar efforts were defeated in three other states (Arkansas, North Dakota, and South Dakota). Let’s dive into the details.
Marijuana Adult-Use Legalization
Voters in Maryland passed Question 4 by a margin of ~66%. Voters were asked: “Do you favor the legalization of the use of cannabis by an individual who is at least 21 years of age on or after July 1st, 2023, in the state of Maryland?” Now that this referendum has passed, it will trigger state lawmakers to begin setting the basic regulations for the adult use of cannabis program. There are no details as of now that relate to any employer limitations. Employers in Maryland are strongly encouraged to keep an eye out for any legal updates on this matter.
Voters in Missouri approved an amendment to the state constitution addressing both medical marijuana and the adult use of marijuana. Amendment 3 by ~53%. The state’s medical marijuana law, approved by voters back in 2018, was amended to add more types of professionals that can authorize the use of medical marijuana, elaborated on how marijuana can be consumed (infused products, vaporization, smoked, etc.), and provided some clarity on driving and marijuana use. While the current medical marijuana law prohibits the operation of a motor vehicle while under the influence of marijuana, the law was amended to specify that the arrest or conviction of a medical marijuana user will require evidence that the user was in actual physical control of the motor vehicle and *may not rely solely on the presence of THC or THC metabolites in the person’s system*. [emphasis added]
Employers are still protected from claims based on an employer’s prohibition of individuals being under the influence of marijuana while at work. However, with this new amendment, employers may not discriminate against a medical marijuana patient unless failure to do so would result in the loss of monetary or licensing-related benefits under federal law, or unless the person was *under the influence* of marijuana on the employer’s premises or during work hours. [emphasis added]
The law does not define “under the influence of marijuana.” So, it remains unclear if employers can rely on positive drug test results for marijuana to prove the individual was “under the influence while at work.”
Finally, Amendment 3 authorizes the adult use of marijuana for individuals 21 years of age and older. Employers are not required to accommodate the use of marijuana at work or while on company property, and employers are permitted to act if an employee is working while under the influence of marijuana (again, the law does not define this term). These new rules will take effect “30 days after the election.”
Arkansas voters, who previously approved medical marijuana use in 2016, were asked to consider legalizing marijuana for adult use. The Marijuana Legalization Initiative was defeated by ~56%.
Approximately 55% of voters in North Dakota defeated Measure 2, which would have legalized the adult use of marijuana for individuals 21 years and older.
South Dakota voters approved the adult use of marijuana back in 2020 by 54%; however, the initiative faced legal challenges and was ultimately ruled invalid and overturned by the state Supreme Court. This year voters had another opportunity to have a say on the matter. This time around, Measure 27 was rejected by ~53% of the vote.
As a noteworthy mention, voters in Colorado approved Prop. 122, a “Decriminalization and Regulated Access Program for Certain Psychedelic Plant and Fungi Initiative.” Colorado now joins Oregon as the two states that have decriminalized Psilocybin (aka magic mushrooms) and related psychedelics for adults 21 years or older.
Employers Take Caution
There are now 21 states and Washington D.C. that authorize the adult use of marijuana, and 37 states and Washington D.C. that permits the medical use of marijuana. The trend in the language of these laws continues to contain workplace limitations. Employers nationwide are strongly encouraged to review their substance abuse testing policies in each state(s) they conduct business in to ensure compliance with these laws.
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