Marijuana Legal in More of the U.S.; State Minimum Wages Rise

Allen Smith, J.D. By Allen Smith, J.D. November 7, 2018
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​More states—Michigan, Missouri and Utah—legalized the use of marijuana in ballot measures on Election Day, Nov. 6. Employers in these states should review their drug-use policies and communicate any updates to employees.

Michigan voters approved recreational marijuana, while medical marijuana was legalized in Missouri and Utah. A ballot measure to legalize recreational marijuana in North Dakota failed.

Citizens in Arkansas and Missouri voted to raise their respective state's minimum wage. The increase in Arkansas will give the state the highest minimum wage in the nation when compared to the state's median pay, according to The Washington Post.

In Massachusetts, voters upheld the state's Gender Identity Anti-Discrimination Law, rejecting a ballot measure to repeal it.

Marijuana Legalization

Michigan became the 10th state to legalize marijuana for adults 21 and older, joining Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, Washington state and Washington, D.C.

Health and Productivity Michigan opposed the ballot measure, predicting it would:

  • Decrease work safety and productivity with workers under the influence.
  • Increase absenteeism from work.
  • Increase positive drug-test results at work.

Employers still can have zero-tolerance drug policies, and most do, said Nancy Delogu, an attorney with Littler in Washington, D.C. Some employers have stopped testing applicants for marijuana, though they will do so after accidents or when employees have glazed eyes or smell like weed. "It's a tight labor market right now," she noted, and finding applicants who can pass a drug test is difficult.

Some states have laws prohibiting employees from being disciplined for lawful activities performed outside of work, but whether these laws apply to individuals smoking marijuana off-duty in states that have legalized marijuana is an open question. Using marijuana is still illegal under federal law, noted Ben Ebbink, an attorney with Fisher Phillips in Sacramento, Calif.

Missouri and Utah legalized medical marijuana, bringing the number of states to approve such use to 32, according to U.S. News & World Report. Before the vote in Utah, proponents and opponents of the ballot measure agreed last month on a plan to enact legislation letting patients use cannabis, Forbes reported.

Doctors in Missouri will be able to prescribe marijuana as medication for cancer, chronic migraines, epilepsy, glaucoma and a catch-all category of "any chronic or debilitating condition for which the doctor recommends marijuana," said Daniel Patrick Johnson, an attorney with Ogletree Deakins in Kansas City, Mo. This will leave the prescription of cannabis largely up to doctors' discretion.

He suggested Missouri employers review their workplace policies and adjust them for medical marijuana once the state has regulations in place. Employers don't have to tolerate someone being high at work. But before taking action against someone who uses medical marijuana, consider whether there is a reasonable accommodation, Johnson suggested. He said that predicting how the courts may rule on when accommodations are required is like "reading tea leaves."

Medical marijuana laws typically don't provide a right to accommodate employees, Delogu said. But she noted that in July 2017, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim. Employees have the right to seek a reasonable accommodation under Massachusetts law prohibiting disability discrimination, the court ruled.

[SHRM members-only sample policy: Drug and Alcohol Policy]

Minimum Wage

Arkansas voters approved an increase from $8.50 an hour to $11 an hour over three years. The increase will take effect as follows:

  • $9.25 on Jan. 1, 2019.
  • $10 on Jan. 1, 2020.
  • $11 on Jan. 1, 2021.

Missouri's increased minimum wage will rise incrementally each year from $7.85 an hour to $12 an hour by 2023. It will rise as follows:

  • $8.60 on Jan. 1, 2019.
  • $9.45 on Jan. 1, 2020.
  • $10.30 on Jan. 1, 2021.
  • $11.15 on Jan. 1, 2022.
  • $12 on Jan. 1, 2023.

The federal minimum wage is $7.25 an hour.

Twenty-one states have the same or lower minimum wage as the federal minimum wage, according to the National Conference of State Legislatures: Alabama, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, New Hampshire, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming.

Transgender Rights

Massachusetts upheld the state's Transgender Anti-Discrimination Law in a ballot measure. The law bans discrimination against transgender people in public places and allows transgender individuals to use facilities, such as bathrooms, based on their gender identity.

The ballot measure was a test case by groups interested in floating similar initiatives nationwide, said Michelle Phillips, an attorney with Jackson Lewis in New York City. She said the vote is a significant showing in support of transgender individuals' civil rights.

Keep MA Safe, which opposed the law, asserted that the statute endangers women and children by allowing sex offenders to use restrooms by claiming a certain gender identity. But Phillips said there is no evidence this has ever happened. People who oppose the law do not consider the risk of violence transgender individuals may face if they used bathrooms that matched their assigned sex at birth, she added.

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