In the November 2018 mid-term elections, state ballot measures for the legalization of marijuana were approved in three states – Michigan, Missouri, and Utah – and rejected in one state – North Dakota.

Michigan

Michigan is now the 10th state in the country to legalize the recreational use of marijuana under certain conditions. Michigan residents approved Proposal 1, allowing for recreational marijuana to be consumed, purchased, or cultivated by those 21 and over. The new law went into effect December 6, 2018, but the commercial system will not be running for another year. The law imposes a 10% tax on marijuana sales and will create a licensure system for dispensaries. The law does not require an employer to permit or accommodate recreational use of marijuana, nor does it prohibit an employer from refusing to hire, discharging, disciplining, or taking any other adverse action because of the violation of a workplace drug policy or working under the influence.

Missouri

In Missouri, voters rejected two of three proposals regarding marijuana, but approved a ballot measure (Amendment 2) to allow for medical marijuana to be sold at a 4% tax. Notably, all three measures would have allowed for medical marijuana, but each measure varied in terms of tax, from 2% to 15%. The 4% tax will be used to sponsor veteran’s health issues.

The Missouri Department of Health and Senior Services will implement the law’s provisions, which will take all of 2019. Medical marijuana is not expected to be available for purchase until January 2020. While the law provides certain protections for patients, medical providers, and caregivers, the law does not permit a private right of action against an employer for wrongful discharge, discrimination, or any similar cause of action based on the employer’s prohibition of the employee being under the influence of marijuana while at work or for disciplining or discharging an employee for working or attempting to work while under the influence.

Utah

Utah voters approved Proposition 2, a medicinal marijuana proposal. Proposition 2, which was opposed by the Church of Jesus Christ of Latter-day Saints) was altered by legislation – the Utah Medical Cannabis Act (HB 3001) – after the election. On December 3, HB 3001 passed the legislature and was signed by Governor Gary Hebert. The bill stripped certain provisions of Proposition 2: patients who live more than 100 miles from a dispensary may not grow their own marijuana; patients must purchase medical marijuana through a state- or privately-run dispensary (the number of which has been reduced); and dispensaries must employee pharmacists to recommend dosages. In addition, HB 3001 added nurse practitioners, physician assistants, and high-ranking social workers to the list of health care workers that can recommend medical marijuana. HB 3001 is already the subject to two lawsuits, but currently it is scheduled to take effect on July 1, 2019.

Under the new Utah law, a patient cannot be discriminated against in the provision of medical care due to lawful use of medical marijuana, and the state may not discriminate against such users in employment. The new law, however, does not address medical marijuana use in the context of private employment. But employers may need to treat medical marijuana users the same as they treat employees with disabilities under state law, because the underlying conditions qualifying for medical marijuana use also qualify as disabilities under state law.

North Dakota

Voters in North Dakota rejected Measure 3, an initiative to legalize marijuana for recreational purposes.

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Employers and health care professionals should be ready to handle issues that arise with the potential conflict between state and federal law in devising compliance, both in terms of reporting and human resources issues. States continue to consider – and pass – legislation to legalize marijuana (both medicinal and recreational), and we are marching toward 50-state legalization. Almost all organizations – and particularly those with multi-state operations – must review and evaluate their current policies with respect to marijuana use by employees and patients.

Marijuana LegalizationWhile the presidential election has attracted extreme attention, marijuana legalization initiatives were on the ballots in nine states on November 8, 2016. Four states – Arkansas, Florida, Montana, and North Dakota – approved measures providing for the medical use of marijuana, and three states – California, Massachusetts, and Nevada – approved initiatives allowing for recreational use.  The results in Maine are still close to call, but, if that measure is approved, it will be the fourth measure permitting recreational use.  Only one state (Arizona) defeated a marijuana legalization initiative.

The following chart summarizes the approved initiatives, including implications for employers:

 

State Permitted Use Employment Implications

 

Arkansas Medical Employers cannot discriminate based on “past or present status as a qualifying patient or designated caregiver,” but do not have a duty to accommodate an employee’s use “in a workplace” or “working under the influence.”

 

California Recreational The law does not impact employer’s rights to maintain a drug-free workplace or to prohibit marijuana use by employees or applicants, require the accommodation of marijuana use “in the workplace,” or prevent employers from complying with state or federal law.

 

Florida Medical No express employment provisions.

 

Maine
(results still pending)
Recreational Employers are not required to accommodate use “in the workplace,” may enforce policies restricting use by employees, but may not refuse to employ someone “solely for that person’s consuming marijuana outside of the . . . employer’s . . . property.”

 

Massachusetts Recreational Employers are not required to accommodate use “in the workplace,” and may implement workplace policies regarding use by employees.

 

Montana Medical Employers are not required to accommodate use “by a registered cardholder, and may enter into contracts prohibiting use “for a debilitating medical condition.” Employees have no cause of action for wrongful termination or discrimination.

 

Nevada Recreational Employers may enforce workplace policies restricting or prohibiting use.

 

North Dakota Medical No express employment provisions.

 

While not all of the approved initiatives contain express employment protections for marijuana users, employers must contend with the apparent tension between enforcing a workplace drug policy and the state legalization of marijuana use. Because marijuana remains a controlled substance under federal law, maintenance of a zero-tolerance drug policy is likely the most prudent course of action.  Furthermore, employers may take note that each court to consider the wrongful termination claims brought by marijuana users under state laws has sided with employers’ rights to enforce drug-free workplace policies.

Nonetheless, as more states pass marijuana-related laws, and as off-duty marijuana users are discharged for positive drug tests, these policies may come under additional scrutiny in those states that do provide express employment protections. Going forward, employers should consistently enforce their drug-free workplace policies, and be prepared to educate employees about the potential consequence of a positive test for marijuana, regardless of state law protections.  Employers, however, should continue to monitor the legal landscape, particularly in those states providing express employment protections to marijuana users, in the event that courts in those jurisdictions require the accommodation of a worker’s off-duty marijuana use and to take adverse job action only when such an employee is impaired on the job.