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Marijuana in the Workplace: A Year of Change for Employment Drug Testing

August 13, 2019 | Cristina Loayza

In the early years of state medical marijuana rulemaking, the language of the laws largely excluded the workplace. It is safe to say that tide has turned, and employers now face limitations unlike they ever have before. State-specific rules related to medical and personal use of marijuana are changing at a very rapid pace, and the language of these laws differ from each other significantly.  Employers must be sure their drug testing programs accurately reflect the rules that impact them in each of the states’ where they operate.

As of this writing, there are only two states (Idaho and Nebraska) that have not authorized some form of marijuana use or the use of cannabidiol (CBD).

Let’s briefly recap the recent legal changes:

 

Illinois

On June 4, 2019, the Illinois Legislature passed a compromise bill (HB 1438) that establishes the “Cannabis Regulation and Tax Act.”[1]  The bill was signed by the Governor June 25, 2019, and will take effect January 1, 2020.

The Legislature indicated that it “finds and declares that employee workplace safety shall not be diminished, and employer workplace policies shall be interpreted broadly to protect employee safety.”[2]

The bill states that employers can:

    • Adopt reasonable “zero tolerance” or drug-free workplace policies.
    • Adopt drug testing policies.
    • Adopt policies concerning “smoking, consumption, storage, or use of cannabis in the workplace or while on call.”
    • Discipline (including terminate) any employee that has violated the employer’s policies.
    • Prohibit employees from being under the influence or using cannabis “in the employer’s workplace or while performing the employee’s job duties or while on call.”

An employer may consider an employee to be impaired or under the influence of cannabis if the employer has “a good faith belief[3] that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.

Employers are protected from lawsuits related, among other things, to drug testing or disciplining an employee including termination if that action was taken in a good faith belief that the employee used or possessed marijuana at work, while on duty or in violation of the Company’s policy.

Section 900-50 amends the Right to Privacy in the Workplace Act[4] protects those who use “lawful products” from discrimination at work.  But Section 5(b), the second sentence states: “This Section does not apply to the use of those lawful products which impairs an employee’s ability to perform the employee’s assigned duties.”  What this provision means will likely need to be interpreted by the courts.

 

Maine

Significant Legislative action in Maine has occurred over the last few years regarding marijuana and the workplace from the 2016 voter approval of adult use of marijuana to the Legislature’s 2017 action that prohibited employment discrimination for consuming marijuana “outside” of the workplace. The Legislature attempted to correct the anti-discrimination law, but in April 2018 the Governor vetoed it. In May 2018 the Legislature overrode that veto, but the law which attempted to correct the anti-discrimination rule may not have worked. The law as it is today (L.D. 1650) allows employers to establish policies which prohibit among other things the use, consumption, possession of marijuana products or being under the influence of marijuana within the workplace.

 

New Jersey

On July 2, 2019, the New Jersey Governor signed into law the “Jake Honig Compassionate Use Medical Cannabis Act.” This new law revises the New Jersey Compassionate Use Medical Marijuana Act[5] and prohibits employment action against any individual because of their status as a registrant in the medical marijuana program.  An employer may have a drug testing policy, and if a registrant tests positive for marijuana, the employer must:

  1. provide an opportunity to present a legitimate medical explanation[6]
  2. provide written notice of the right to explain the result.
  3. Within three working days, the employee or job applicant may submit information to explain the result or may request a retest at the employee or applicant’s own expense.[7]

 

New Mexico

Expanding New Mexico’s medical marijuana law (the Lynn and Erin Compassionate Use Act), New Mexico’s Governor signed Senate Bill (SB) 406 into law on April 4, 2019, creating substantial employment protections for medical marijuana users. The law, specifically the newly added Section 11, prohibits employers from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the Act. This includes declining to hire, terminating, or taking any other adverse action against an individual solely based on the individual having a prescription for and/or using medical marijuana.

There are some exceptions to the law for employers that could lose funding or other benefits under federal law or regulations and for employees in “safety-sensitive positions.”

The law also does not afford protections to employees who use or are impaired by medical marijuana while working, during “hours of employment,” or while on the premises of the employer. As such, employers may still take adverse action against employees for use of, or for being impaired by marijuana “on the premises of the place of employment or during the hours of employment,” regardless of whether the employee has a prescription for medical marijuana.

 

Nevada

Lawmakers in Nevada have approved the first-ever statewide ban on pre-employment drug testing for marijuana. Assembly Bill 132 (AB132) was signed into law by Governor Sisolak on June 5, 2019. Beginning January 1, 2020, Nevada employers will no longer be able to take employment action if an applicant submits a drug test that is positive for marijuana unless the prospective employee is applying for certain safety-sensitive jobs. Those jobs include a firefighter, an emergency medical technician, operator of a motor vehicle regulated under federal or state law or any position that “in the determination of the employer could adversely affect the safety of others.”[8]

 

Oklahoma

On March 14, 2019, the Oklahoma Medical Marijuana and Patient Protection Act (HB 2612) was signed into law by the Governor. This law, known as the “Unity Bill,” was designed to address some concerns from Question 788, passed by the voters June 2018.  The law prohibits employers from discriminating against an employee or applicant solely on the basis that the person’s status as a “medical marijuana licensee.”  Additionally, no employer may take employment action based on a medical marijuana licensee’s positive drug test for marijuana metabolites unless:

  1. the individual is not in possession of a valid medical marijuana license,
  2. the licensee possesses, consumes or is under the influence of marijuana or a marijuana product while at work or during “fulfillment of employment obligations,”
  3. the licensee is in a position which is considered “safety-sensitive” defined by law.

 

New York City

The New York City Council passed Ordinance Int. No. 1445-A which will take effect on May 10, 2020. The Ordinance prohibits employers or their agents from requiring a job applicant to submit to a drug test “for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”

An exception provides that anyone applying for a position that includes:

(A) As police officers or peace officers, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation;

(B) In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law;

(C) In any position requiring a commercial driver’s license;

(D) In any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in paragraph 15 of section 488 of the social services law; or

(E) In any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.[9]

 

Legal Disclaimer: The information provided should not be considered a comprehensive review of the laws, nor should it be construed as legal advice. This post is for information only. You should consult with your legal representative before taking any employment action.

 

[1]http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1438&GAID=15&DocTypeID=HB&LegId=115810&SessionID=108&GA=101

[2]HB 1438, Article 1, Section 1-5(e).

[3]The term “good faith belief” is not defined in the law.

[4]820 ILCS 55/5.

[5]N.J.S.A. 24:6I-1 et seq.

[6]There is no indication whether a registrant’s use of medical marijuana is a legitimate medical explanation but as part of the explanation the employee or applicant may present a copy of the medical authorization by a health practitioner as proof of registration with the commission.

[7]cf: P.L. 2009, c. 307, s9(b)(2).

[8]A.B. 132, sec. 2 [Ch. 613 NRS].

[9]The jobs “with the potential to significantly impact the health or safety of employees or members of the public” has yet to be decided.

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