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Employers can still discipline intoxicated workers
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Possessing and growing limited amounts of recreational marijuana will soon be legal in Vermont, making it the ninth state to approve nonmedicinal use of the drug for adults age 21 and older. Employers should note, however, that possession and use in the workplace doesn't have to be tolerated.
Vermont is the first state whose lawmakers proposed and passed a law allowing recreational marijuana use. In Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington and Washington, D.C., voters approved such laws through ballot initiatives.
Vermont's law takes effect on July 1 and will allow residents to grow up to two mature and four immature marijuana plants and possess up to one ounce without facing criminal penalties.
"However, marijuana may not be consumed in a public place, such as streets, parks, public buildings, places of public accommodation and places where the use of tobacco products is prohibited," noted Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.
Although many other states that have legalized recreational weed have authorized retail sales, Vermont's new law doesn't go that far. Cultivation needs to happen at home with the approval of the property owner.
Importantly, the new law doesn't prohibit employers from having policies against marijuana use, said Michael Clarkson, an attorney with Ogletree Deakins in Boston. Vermont's law specifically states that it doesn't:
Clarkson noted that employers should be mindful of Vermont's strict limitations on drug testing. Except when required by federal law, Vermont employers aren't allowed to conduct random drug tests, though the state does permit pre-employment screens and tests based on reasonable suspicion. That means current employees shouldn't be tested unless they appear intoxicated. Employers can likely still rescind an offer based on a positive pre-employment screen.
[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]
As medical and recreational use become more widely acceptable, some employers are having trouble finding workers who can pass a cannabis screen, Clarkson said, adding that a lot of employers are choosing not to test for the substance anymore. Certainly, employers should test when it is required by federal law—such as for pilots and other safety-sensitive positions—but they may want to think about whether it makes sense to screen for other roles, he said.
It really depends on whether the employer wants to prohibit the use of marijuana or not, Russo said. "For employers in dangerous or safety-sensitive industries, most still want to prohibit the use and possession of marijuana at work and still want to drug-test and discipline those who test positive for marijuana."
Employers should note that Vermont's new law addresses only recreational marijuana, as the state already has a separate medical marijuana law. Although the state's medicinal law doesn't require employers to engage in an interactive process with cannabis cardholders to explore whether a reasonable accommodation can be made, employers may want to consider doing so anyway as attitudes toward marijuana use evolve.
The Massachusetts medical marijuana law, for example, doesn't explicitly provide employment protections, but the state's high court held in 2017 that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim.
More states may adopt the Massachusetts approach, because medical marijuana is generally used to treat an underlying medical condition, Clarkson said. But just because an employer engages in an interactive process doesn't mean the business must provide an accommodation, he noted. For example, there may not be a way to safely accommodate a forklift operator's medical marijuana use. Employers may have to balance the risk of serious injuries occurring on the job with the risk of being sued for declining to accommodate marijuana use.
From an employment perspective, recreational marijuana is different from medical marijuana, Russo said, because recreational users are not using the drug to treat symptoms caused by a disability and so there is no risk to employers of a potential disability discrimination lawsuit. "So it is much easier for employers to prohibit any use of recreational marijuana," she said.
Employers never have to accommodate on-the-job intoxication, but some state laws prohibit employment discrimination based on a job applicant's or employee's medical marijuana cardholder status. Either by statute or case law, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania and Rhode Island have each provided employment protections (to varying degrees) for medicinal users.
Compliance can be tricky, since state law employment protections vary and marijuana remains illegal at the federal level. Multistate employers will need to decide if they want to have one policy that covers all the jurisdictions in which they operate or if they want to have state-specific policies, Clarkson said.
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