Marijuana Legalization Is on the Ballot in 5 States

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cannabis in a glass jar

​The trend to legalize cannabis consumption will continue on Election Day as voters in five states will decide whether to approve medical or recreational marijuana use.

On Nov. 3, voters in Mississippi will get to weigh in on whether medical marijuana should be legal in the state. In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters will decide whether to approve recreational use. Both recreational and medical measures are on the ballot in South Dakota.

During the last presidential election in 2016, nine states considered cannabis measures, and all but Arizona's recreational proposal were approved. Although all marijuana use is still illegal under federal law, 33 states currently allow medical use, and 11 of those states and Washington, D.C., also allow recreational use.

"With the majority of states already having legalized cannabis, and five more states voting on legalization this November, it has become increasingly important for employers to clarify their policies," said Brett Wendt, an attorney with Fisher Phillips in Denver.

Employers can prepare now. "There are three major questions to think about ahead of the elections," said Michael Freimann, an attorney with Greenspoon Marder in Denver:

  1. If the employer currently conducts drug tests, does it want to continue drug testing if marijuana use is legalized?
  2. What policies will need to be added or updated if new laws are passed?
  3. Will the employer be required to provide a reasonable accommodation for registered medical marijuana patients?

Understand the Statutes

Employers should review their policies and practices to ensure compliance with new laws.

"Most states already allow marijuana use for medicinal purposes, but the details of these laws vary," Wendt noted. Under medical marijuana laws, covered patients and their caregivers generally must receive a certification from a medical practitioner and be registered with the state, but the qualifying medical conditions for which cannabis can be used can differ significantly from state to state.

States may also pass employment protections to prohibit employers from taking adverse employment actions against employees due to their cannabis use or status as a registered medical marijuana patient, observed Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. 

New York and New Jersey, for example, have already codified certain employment protections for medical cannabis users.

"Further, employers should also be wary of any potential duty to accommodate medical cannabis users if medical cannabis is legalized," she said.

Employers never have to accommodate on-the-job marijuana use, but they may want to change blanket policies that exclude marijuana users from employment. A reasonable accommodation may not be available for a given job, but employers may need to make a good-faith effort to find one for registered medical marijuana patients, such as granting time off or altering shifts while the worker is medicated.

"Not surprisingly, state laws also vary greatly when it comes to the recreational use of cannabis," Wendt said. Each state that allows the use of recreational cannabis strictly regulates where it can be purchased and consumed and how much can be grown at home. He noted, however, that states that allow recreational cannabis use nonetheless make it clear that employers can usually discipline employees for violating a workplace drug policy.

"Drug-testing procedures may need to be modified as well," Mastroianni said. Under New Jersey law, for example, employers must comply with certain notification requirements if an employee tests positive for cannabis use.

A few jurisdictions, such as New York City and Nevada, prohibit employers from making an adverse hiring decision based on a pre-employment marijuana screen, but they allow for some exceptions.

"Given the added red tape, some employers may decide to stop testing applicants and employees for the presence of cannabis altogether," Mastroianni noted.

Review Policies

"Employers have an obligation to maintain a safe workplace and employers who are federal contractors have obligations to comply with the Drug Free Workplace Act," noted Jill Vorobiev, an attorney with Reed Smith in Chicago. She said employers should have strong policies in place that address impairment at work.

Wendt suggested treating marijuana use like alcohol or prescription drug use. Marijuana screens don't show whether someone is currently under the influence the way that alcohol tests do, he said, so employers should consider stating in their policies that they will discipline an employee who displays behaviors of intoxication or impairment.

"Safety is paramount," Freimann said. "Take a step back and look at policies from a global perspective." Employers shouldn't sacrifice safety in light of the recent trend to legalize marijuana, he noted.

Which policies will best protect employee health and safety? Employers will need to decide whether they will have the same drug-testing policy for every role or if drug testing is more critical for some jobs than others. For example, different policies may apply to office workers than forklift drivers.

"The key takeaway from all of this is that employers need to clearly convey their policies to employees, modify their handbooks to comply with changing laws, and apply discipline in a consistent manner," Wendt said.

Visit SHRM's resource page on marijuana and the workplace.

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