Rhode Island Legalizes Personal Use of Marijuana – Law Limits Employers

July 12, 2022 | Shannon Shoemaker

Rhodes Island has become the 19th state to legalize the adult personal use of marijuana. The new law went into effect immediately, with retail sales planned by the end of this year. Employers in the state are not required to accommodate the use or possession of marijuana or being under the influence of marijuana while at work or any location where the employee is performing work, including remote work.

Employers are permitted to refuse to hire, terminate, discipline, or take other employment action based on an individual’s violation of a workplace drug policy or because the individual was working while under the influence of marijuana.

However, employers must take caution as the new law does provide protections for individuals using marijuana outside of the workplace. Employers are generally prohibited from terminating or taking disciplinary action against an employee “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”

 

Here are some highlights from the new law:

21-28.11-29. Prohibited activities. [Emphasis added]

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(b) Nothing in this chapter shall be construed to require:

(1) A government medical assistance program or private health insurer or workers’ compensation insurer, workers’ compensation group self-insurer, or employer self-insured for workers’ compensation under § 28-36-1 to reimburse a person for costs associated with the medical use of cannabis; or

(2) An employer to accommodate the medical use of marijuana in any workplace.

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(d) Nothing contained in this chapter shall be construed to require employers to accommodate the use or possession of cannabis, or being under the influence of cannabis, in any workplace or the use of cannabis in any other location while an employee is performing work, including remote work. Employers may implement drug use policies that prohibit the use or possession of cannabis in the workplace or while performing work from being under the influence of cannabis, provided that unless such use is prohibited pursuant to the terms of a collective bargaining agreement, an employer shall not fire or take disciplinary action against an employee solely for an employee’s private, lawful use of cannabis outside the workplace and as long as the employee has not and is not working under the influence of cannabis except to the extent that:

(1) The employer is a federal contractor or otherwise subject to federal law or regulations such that failure to take such action would cause the employer to lose a monetary or licensing related benefit thereunder; or

(2) The employee is employed in a job, occupation or profession that is hazardous, dangerous or essential to public welfare and safety. If the employee’s job, occupation or profession involves work that is hazardous, dangerous or essential to public welfare and safety then the employer may adopt and implement policies which prohibit the use or consumption of cannabis within the twenty-four (24) hour period prior to a scheduled work shift or assignment. For purposes of this section, hazardous, dangerous or essential to public welfare and safety shall include, but not be limited to: operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation; use of explosives; public safety first responder jobs; and emergency and surgical medical personnel

* * *

(e) Nothing contained in this chapter shall prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of cannabis.

 

Action Item

With this new law protecting the off-duty use of marijuana, affected employers should revisit their drug testing policies and procedures and make appropriate revisions to comply with the law.

As a reminder, Rhodes Island’s existing medical marijuana law also limits employers

 

21-28.6-4 Protections for the medical use of marijuana. [Emphasis added]

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(e) No employer may refuse to employ, or otherwise penalize, a person solely for his or her status as a cardholder, except:

(1) To the extent employer action is taken with respect to such person’s:

(i) Use or possession of marijuana or being under the influence of marijuana in any workplace;

(ii) Undertaking a task under the influence of marijuana when doing so would constitute negligence or professional malpractice or jeopardize workplace safety;

(iii) Operation, navigation, or actual physical control of any motor vehicle or other transport vehicle, aircraft, motorboat, machinery or equipment, or firearms while under the influence of marijuana; or

(iv) Violation of employment conditions pursuant to the terms of a collective bargaining agreement; or

(2) Where the employer is a federal contractor or otherwise subject to federal law such that failure of the employer to take such action against the employee would cause the employer to lose a monetary or licensing related benefit.

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