Legalization of medical and leisure marijuana use continues to unfold throughout america regardless of the drug remaining a Schedule I managed substance beneath federal legislation. This comes as respondents to Ogletree Deakins’ latest survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, indicated that maintaining with marijuana legal guidelines is already probably the most difficult areas of multi-jurisdictional compliance for employers.
As marijuana legalization continues to broaden, and employers battle with this difficult matter in managing their workplaces, three latest developments are consultant of the long run challenges that employers might face as this space of the legislation continues to develop.
Medical Marijuana Expands Within the South
Whereas most states have legalized no less than medical marijuana, a number of, historically extra politically conservative, states throughout the Southeast and elements of the Midwest have been slower to behave. That’s starting to vary. In February 2022, Mississippi Governor Tate Reeves signed the Mississippi Medical Hashish Act to grow to be the thirty seventh state to legalize medical marijuana. The act authorizes the usage of marijuana by these affected by an enumerated checklist of 20 medical circumstances, together with most cancers, Crohn’s illness, post-traumatic stress dysfunction, and any “persistent, terminal, or debilitating” situation.
But in contrast to many different state medical marijuana legal guidelines, Mississippi’s legislation doesn’t present direct, categorical employment protections for medical marijuana cardholders. Notably, the legislation incorporates many employer-friendly provisions, and does not require well being insurers to pay for medical marijuana, require employers to allow or accommodate medical marijuana use, prohibit drug-testing packages, or prohibit employers from refusing to rent candidates who use medical marijuana.
Whereas the Mississippi employers ought to stay aware of separate however associated incapacity lodging issues for medical marijuana cardholders, the brand new legislation represents the growth of medical marijuana legalization to traditionally conservative states, and the extra employer-friendly nature of those legal guidelines. With this growth, many employers which have by no means needed to take care of marijuana points within the office will likely be required to acclimate themselves to the evolving authorized panorama.
California Mulls Lawful Off-Responsibility Use Protections
With leisure marijuana now authorized in 19 states throughout the nation, an growing variety of these states, notably California, and cities are contemplating oblique employment protections—i.e., separate from the leisure marijuana legal guidelines themselves—for lawful, off-duty use of the drug. This comes on the heels of New York’s leisure marijuana legalization, which amended the New York lawful off-duty conduct legislation to incorporate leisure marijuana use as “lawful” conduct. California’s Meeting Invoice (AB) 2188, making its manner via the state legislature in 2022, would amend the California Truthful Employment and Housing Act, the state’s antidiscrimination legislation, to ban an employer from discriminating towards “an individual in hiring, termination, or any time period or situation of employment … primarily based upon the individual’s use of hashish off the job and away from the office.”
These “lawful off-duty conduct” legal guidelines are supposed to stop these utilizing marijuana legally outdoors of the office from dealing with hostile employment actions, however they’re creating further compliance challenges for employers that want to preserve a marijuana drug-testing program or guarantee staff aren’t impaired at work, particularly in security delicate jobs.
Cities Creating Their Personal Guidelines
Main cities are additionally passing their very own legal guidelines regulating marijuana and generally implementing employment protections for lawful, leisure use. In June 2022, the Washington D.C. metropolis council unanimously handed a invoice, B24-0109, to stop employers kind firing staff who fail marijuana drug assessments with a number of exceptions. Mayor Muriel Bowser signed the legislation and despatched to Congress in July 2022. Nonetheless, its employment protections will doubtless not be relevant till July 2023.
The D.C. legislation incorporates an exception for jobs designated as security delicate, permitting employers to impose harsher marijuana utilization restrictions and disciplinary insurance policies on these people. The legislation defines a security delicate job as a place by which it’s “fairly foreseeable” that an worker performing the job’s “routine duties or duties whereas beneath the affect of medicine or alcohol” would “doubtless trigger” hurt or harm to others.
States legalizing medical and leisure marijuana use at totally different levels and a few cities passing their very own legal guidelines are creating challenges for employers that wish to preserve drug-testing packages. Employers are nonetheless typically allowed to keep up drug-free office insurance policies and there could also be sure safety-sensitive jobs the place larger prohibition of marijuana use and drug testing is allowed. Nonetheless, employers might wish to take into account how loosened state restrictions might affect their conventional marijuana use insurance policies, notably the rise of legal guidelines offering employment protections for lawful, off-duty use.
Ogletree Deakins’ State Law Maps present an outline of the present state of marijuana legalization legal guidelines.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.Nationwide Legislation Assessment, Quantity XII, Quantity 236