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Employers have been grappling with confusing marijuana laws for years—and the rules are getting tougher to navigate as more states add employment protections.

Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y., feels that there are so many new developments with drug-testing and marijuana laws, it's hard for employers to keep up. Starting in 2020, some locations will prohibit employers from screening new hires for marijuana or refusing to hire applicants based on a failed pre-employment marijuana screen—though there are exceptions for safety-sensitive positions. This may be the new trend, Russo said.

Here's what employers need to know about the changing landscape for weed and the workplace in the year ahead.  

Legalizing Recreational Use

Although all marijuana use is still illegal under federal law, at least 33 states allow medical use, and 11 of those states and Washington, D.C., also allow recreational use.

On Jan. 1, Illinois became the 11th state to legalize recreational marijuana use, and employers are still figuring out what the new law means for the workplace.

"When the act was initially passed, employers expressed concern that they might have to prove an employee was under the influence of cannabis when an employee failed a drug test," said Jennifer Colvin and Michael Furlong, attorneys with Ogletree Deakins in Chicago. "Employers also expressed concern regarding whether they could conduct random drug tests."

So Illinois lawmakers approved an amendment clarifying that employers can conduct reasonable drug and alcohol tests, including random tests, and may discipline, fire or refuse to hire a worker who fails.

"Despite this employer-friendly amendment, workplace drug policies still must be both reasonable and nondiscriminatory," Colvin and Furlong said. Notably, the amendment didn't define a "reasonable" policy.

More states are expected to approve—or attempt to approve—recreational cannabis use in 2020. New York Gov. Andrew Cuomo said he's making it a priority.

"This year, let's work with our neighbors New Jersey, Connecticut and Pennsylvania to coordinate a safe and fair system, and let's legalize adult use of marijuana," he said in his 2020 State of the State address on Jan. 8.

Limiting Pre-Employment Drug Screens

Another big trend that's taking shape in 2020 involves limits on pre-employment marijuana screening. On Jan. 1, a Nevada law took effect barring employers from considering a pre-employment marijuana test result, and beginning May 10, a New York City law will prohibit employers from conducting pre-employment marijuana tests. Both laws have exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing.

Even states that allow employers to refuse to hire job applicants who fail drug tests may require employers to take specific steps before rescinding a conditional job offer.

Some states have laws prohibiting employers from discriminating against workers who use lawful products while they're off duty. Such laws were enacted to protect tobacco users from discrimination, said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles, but whether those laws protect off-duty use of a product that remains illegal under federal law is questionable.

Protection for Registered Medical Patients

More states are also passing laws that prohibit employers from discriminating against employees because they are authorized medical-marijuana patients or caregivers of patients.
"In those states, employers may be required to engage in the interactive process to accommodate the use of medicinal marijuana off duty," said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich.

A reasonable accommodation may not be available for a given job, but employers should make a good-faith effort to find one, such as granting time off or altering shifts while the worker is medicated.

Employers should note that they don't have to accommodate on-the-job use or intoxication, even in states where they can't fire or refuse to hire a worker simply for being a registered medical-marijuana user.

But determining how to proceed if an employee has used medical marijuana varies by state, explained David Morrison, an attorney with Goldberg Kohn in Chicago. For instance, in Arkansas, employers may discharge employees based on a good-faith belief that the employee was impaired by medical marijuana on company property or during work hours, but a positive drug test alone is not sufficient grounds for a good-faith belief. The employer also needs to observe something in the worker's conduct, behavior or appearance that indicates intoxication or receive information from a reliable person about the worker's impairment. A positive drug test, however, may be sufficient to bar an employee from working in safety-sensitive positions, Morrison noted.

Alaska, Arizona, Delaware and Minnesota state laws also prohibit employment discrimination against qualified medical-marijuana users.

In contrast, employers in some states, such as California, Colorado, Michigan, Montana, Ohio and Oregon can fire employees who test positive for marijuana, even if the use was off-duty and for a medical condition.

"While many states address these issues in their statutes, state courts also have weighed in," Morrison said. In New Jersey, an employer did not have to waive a post-accident drug test for an employee who was a registered medical-marijuana user.

Although marijuana use is not covered by the federal Americans with Disabilities Act, employees may be able to bring state-law discrimination claims. Courts in Massachusetts and Rhode Island, for example, have allowed such claims in recent years, though older court decisions in California and Colorado dismissed state-law claims as pre-empted by federal laws prohibiting marijuana use.

Consider the Job and Business

So what should employers do in light of these differing laws? "You have to consider the needs of the business, in addition to any applicable state laws," Welch said. Federal contractors, drivers and workers in other safety-sensitive positions may be subject to drug-free workplace laws, whereas general office workers may not. Employers that are struggling to fill vacant positions might want to relax their standards.

"More and more employers appear to be treating marijuana use like alcohol use and allowing recreational off-duty use," Welch observed.

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