With all the hoopla surrounding the Presidential Election this week, consumption of marijuana – either medicinally or recreationally – which was also at stake across the nation, got a bit lost in the fanfare.
On Tuesday, November 8, 2016, nine states had marijuana-related measures on their ballots – five to consider whether to legalize marijuana for recreational use, and four to vote on whether to allow medical marijuana. In all but one state (Arizona), the measures passed. Here are how the votes shook out:
- Arkansas – The Arkansas Medical Marijuana Act legalized marijuana for medical use by individuals with qualifying medical conditions. The law specifically enumerates 17 qualifying medical conditions and provides that the Department of Health will be responsible for adding to the list when necessary. The new law also contains a nondiscrimination provision that prohibits employers from discriminating against an individual solely based on the individual’s status as a qualifying patient or designated caregiver. However, and this is a big however, the law does not require an employer to accommodate the ingestion of marijuana in the workplace or an employee working while under the influence of marijuana. There are other prohibitions which include undertaking any task while under the influence of marijuana when doing so “would constitute negligence or professional malpractice,” and further prohibits operation of a vehicle while under the influence of the drug.
- Florida – Florida’s Amendment 2 as passed allows for medical use of marijuana by individuals with debilitating conditions, as prescribed by a physician. Florida had an existing law regarding medical use in the state, but the amendment expanded the program. The law does not require employers to permit use of marijuana in the workplace, and prohibits the operation of a vehicle while under the influence of marijuana.
- Montana – Montana’s Initiative 182 amended the state’s existing Montana Marijuana Act, rebranding it as the Montana Medical Marijuana Act. The new law eliminated a variety of restrictions under the old law, repealing the three-patient limit for providers and state review of physicians who prescribe marijuana to numerous patients. It also expanded the range of conditions for which marijuana can be prescribed to include chronic pain and post-traumatic stress disorder.
- North Dakota – The North Dakota Compassionate Care Act provides for the use of medical marijuana by patients with certain serious medical conditions, including cancer, Lou Gehrig’s disease, epilepsy, Crohn’s, and spinal stenosis. The law specifically states that medical marijuana users are not relieved from criminal prosecution or civil penalty for possession, use, distribution or transfer of marijuana in the workplace. (And again, the measure does not relieve medical marijuana users from liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of marijuana.)
- California – California employers are not strangers to marijuana laws; the Compassionate Care Act of 1996 legalized use of medical marijuana, and a senate bill decriminalized possession of one ounce or less in 2010. The new law (“Proposition 64”), also known as the Control, Regulate and Tax Adult Use of Marijuana Act, legalizes recreational use for individuals over the age of 21, and allows them to possess, transport, and purchase up to an ounce of marijuana as well as grow up to six plants for recreational use. The law also does not alter or amend the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace and to have policies prohibiting the use of marijuana by employees and applicants.
- Maine – Voters said yes to the Marijuana Legalization Act in Maine, allowing individuals over the age of 21 to possess, transport, and use up to 2.5 ounces of marijuana as well as possess, grow, cultivate, process or transport up to six marijuana plants. Like all the other states, employers retain all of their rights to have drug and alcohol free workplaces, and they may continue to “enact and enforce workplace policies restricting the use of marijuana by employees and to discipline employees who are under the influence of marijuana in the workplace.” There is an anti-discrimination provision that prohibits employers from refusing to employ “or otherwise penalize a person 21 years of age or older solely because that person consumed marijuana outside the employer’s property.”
- Massachusetts – The Regulation and Taxation of Marijuana Act now permits individuals who are 21 years and older to grow, use, and possess the up to one ounce of marijuana, keep 10 ounces of marijuana at home, and to cultivate up to six marijuana plants. The new law contains a protective provision for employers that they do not have to “permit or accommodate conduct otherwise allowed by [the act] in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting consumption of marijuana by employees.”
- Nevada – Nevada’s new Regulation and Taxation of Marijuana Act permits individuals 21 and older to use or possess up to one ounce of marijuana, and possess or cultivate up to 6 marijuana plants. As in all other states passing measures like this one, the law does not prohibit a public or private employer from maintaining, enacting or enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under the law. (This measure, of all set forth here, is probably the most surprising of all that it passed, in that the Nevada Resort Association, representing the gaming and resort industry and a very powerful player in the state, strongly opposed the measure because marijuana remains illegal under federal law and thus can open casinos to federal prosecution or cause them to lose their state gaming licenses. But, in the end, it was the will of the people who voted it into law.)
An interesting post-election fact is that 1 in 5 Americans will now reside in a state where marijuana is legal, either medicinally or recreationally. However, the legal landscape for employers has not changed, particularly since marijuana is still illegal under federal law. However, the growing provisions being added to state laws regarding prohibiting discrimination against medical users may provide some workplace protections under certain circumstances, and this bears watching.
We urge our ACCA members to take a close look at, and possibly revise, their safety initiatives and drug and alcohol testing policies to determine whether any modifications are required. It is always a best practice to provide clear guidance to your employees on expectations and prohibitions related to the use of marijuana.