New Marijuana Laws in New Mexico and Virginia

2021 has brought a flurry of activity surrounding marijuana laws, particularly recreational marijuana use. The number of states approving recreational marijuana continues to grow.

New Mexico

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed the state’s recreational marijuana bill. The New Mexico recreational marijuana law will take effect in late June 2021. Unlike the recent marijuana laws enacted in New York and New Jersey that provide employment protections for off-duty recreational marijuana users, the New Mexico law does not “prevent or infringe upon the rights of an employer to adopt and implement a written zero-tolerance policy regarding the use of cannabis products.”  The law permits employers to take adverse employment actions for the possession or use of marijuana at work or during work hours.  Additionally, the law specifically permits zero-tolerance policies that impose discipline or termination for a positive marijuana test result indicating any amount of THC. However, employers should take note that the law does not restrict rights afforded to medical marijuana users under state law.

Virginia

Effective July 1, 2021, individuals over the age of 21 can lawfully possess up to an ounce of marijuana in Virginia. The new law creates a Virginia Cannabis Control Authority which will implement regulations for the adult use of marijuana market.  In late March, Virginia also amended the state’s medical cannabis law to prohibit discrimination against lawful users of medical cannabis oil. The law, which becomes effective July 1, 2021, does not restrict employers from taking action based on workplace impairment due to use of cannabis oil. It also contains exceptions for employers if compliance with the law would result in a loss of a federal contract or federal funding, and for defense industrial base sector employers.

South Dakota

The fate of recreational marijuana is yet to be determined in South Dakota. As previously reported, voters approved both recreational and medical marijuana initiatives in November 2020. However, the South Dakota recreational measure was later struck down as unconstitutional. That ruling has been appealed, and the South Dakota Supreme Court will hear arguments on the issue later this month.

 

New York Legalizes Recreational Marijuana

New York Governor Andrew Cuomo signed legislation legalizing recreational marijuana on March 31, 2021. The legalized use of marijuana is effective immediately, even though retail sales of marijuana are not expected to begin until mid-2022. This change potentially immediately impacts a New York employer’s ability to take adverse actions against applicants and employees based on recreational marijuana usage.

The Marihuana Regulation and Taxation Act (MRTA) legalizes and regulates cannabis use and possession for adults who are 21 and older. The MRTA creates a new Cannabis Law and consolidates the laws affecting recreational adult-use of cannabis, medical marijuana, and the cannabinoid hemp program. These programs will be overseen and regulated by a newly created Cannabis Control Board and the Office of Cannabis Management.

Effective immediately, adults who are 21 and older may possess up to three ounces of cannabis and up to 24 grams of concentrated cannabis and may use cannabis except as may otherwise be prohibited by state law.  The law does not permit driving while under the influence of cannabis or smoking cannabis in locations where smoking tobacco is prohibited. It also does not require any individual to engage in any conduct that violates federal law, among other things.

Amendment to Legal Activities Law

The most significant provisions for employers are the amendments to Section 201-d of the New York Labor Law. MRTA provides that an employer must adhere to policies regarding cannabis in accordance with Labor Law Section 201-d. This means that New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property. However, Section 201-d is amended to say that an employer would not be in violation of that law where the employer takes action related to the use of cannabis based on the following:

  1. The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. The employee is impaired by the use of cannabis; meaning, the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
  3. The employer’s actions would require such employer to commit an act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Changes to Medical Marijuana Law

Oversight of the state’s medical marijuana program will shift from the Department of Health to the Office of Cannabis Management. Any medical condition will qualify for medical marijuana use, as recommended by a medical practitioner, and the types of products that may be used will expand and marijuana can be sold to medical users in leaf/flower form.  Medical marijuana users will still be deemed to have a “disability” within the meaning of the New York Human Rights Law.

MRTA also provides that employees who use medical cannabis must be afforded the same rights, procedures, and protections that are available and applicable to injured workers under the workers’ compensation law, when such injured workers are prescribed medications that may prohibit, restrict, or require the modification of the performance of their job duties.

Driving Under the Influence

MRTA directs the state police to increase the number of trained and certified drug recognition experts and provide increased drug recognition awareness and advanced roadside impaired driving enforcement training.

The Department of Health is directed to conduct research to evaluate methodologies and technologies for the detection of cannabis-impaired driving and to present its findings to the legislature on or before December 31, 2022. Thereafter the Department of Health may promulgate rules and regulations to approve and certify a test to detect current cannabis impairment by operators of motor vehicles.

Practical Considerations

New York employers should review their drug and alcohol testing policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. Supervisors should be trained to make reasonable suspicion determinations so that disciplinary actions based on positive marijuana reasonable suspicion tests will be defensible.

Connecticut Medical Marijuana User Could Not Proceed With ADA Claims

The District Court of Connecticut dismissed employment discrimination claims asserted under the Americans with Disabilities Act (“ADA”) with regard to state authorized medical marijuana use.  Eccleston v. City of Waterbury, No. 3:19-cv-1614, 2021 U.S. Dist. LEXIS 52835 (D. Conn. Mar. 22, 2021).

The employee was employed as a firefighter by the City.  His employment was terminated after he tested positive for marijuana on a random drug test.  The employee argued that his test result should have been treated as a negative because he had a Connecticut Registration Certificate for medical marijuana use; however, the City discharged him due to his use of marijuana “such that it has endangered the health and wellbeing of others.”

The employee filed a federal action for disability discrimination under both the ADA and state medical marijuana laws.  The City moved to dismiss the employee’s ADA claims arguing that the statute specifically excludes “any employee . . . who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” Id. (quoting 42 U.S.C. § 12111(6); 21 U.S.C. § 812(b)(1)(a)-(c)).  The court noted that the ADA relies on the federal Controlled Substances Act to define “illegal drug use,” and under the Controlled Substances Act, marijuana is an illegal drug.

The City further argued that the employee’s marijuana use did not qualify for ADA protection under the supervision of a physician exception because the use of marijuana is still strictly prohibited under federal law.  The Court agreed with the City and concluded that the employee’s state-sanctioned use of medical marijuana was not protected by the ADA.

The Court further held that the employee failed to state a claim for discrimination based upon the illness underlying his medical marijuana state certification because he did not claim that he ever informed his employer of the medical condition.

Additionally, the employee asserted that his state certification to use medical marijuana entitled him to the reasonable accommodation of testing positive for marijuana with impunity.  The Court again disagreed, citing to several federal cases which relied upon the Controlled Substances Act’s “classification of marijuana as a Schedule I illegal substance to conclude that using marijuana is not a reasonable accommodation.”

With regard to the employee’s retaliation claim, the Court held that merely indicating to his employer that he was considering obtaining a medical marijuana card did not qualify as a protected activity under the ADA.

Accordingly, the Court dismissed the employee’s federal claims under the ADA and declined to exercise supplemental jurisdiction over the state law claims.  The state law claims were therefore dismissed without prejudice so the employee may refile in State court.

Missouri Employer Had Just Cause To Terminate Union Employee Who Tested Positive For Marijuana, Despite Lack of Workplace Impairment

A Missouri-based manufacturer of animal pharmaceuticals had just cause to terminate a 37-year employee who tested positive for marijuana despite the union’s argument that the employee’s personal use of CBD oil and marijuana did not cause impairment at work.  Virbac Corporation and International Brotherhood of Electrical Workers, Local 1, (January 10, 2020) (Horn, Arb.)

The employer required the employee, a maintenance electrician and member of the company’s safety committee, to submit to a drug test as part of a return-to-duty physical following a 47-day medical leave of absence. The employer’s policy required drug testing at the end of any medical leave lasting more than 30 days. The employee tested positive for marijuana. He admitted that he used marijuana during his medical leave to help him sleep and he further admitted that he used CBD oil to help with arthritis and chronic back pain. However, the employee was not a licensed medical marijuana user under Missouri law.

The drug test was subject to confirmatory testing, and a Medical Review Officer attempted to reach the employee before certifying the results. Due to the employee’s failure to respond, the Medical Review Officer reported the test result as positive. The employer then suspended the employee pending investigation, giving the employee an opportunity to provide documentation to explain the test result. The employee failed to do so, and the employer terminated the employee.

The employer routinely terminated employees when they tested positive for drugs, including marijuana.  The employee was familiar with the 30-day drug testing rule and had been tested under that rule once before, without complaint.

The employee filed two union grievances regarding the termination. During the initial grievance meetings, the employee claimed he tested positive for marijuana due to lawful CBD oil use. However, during the arbitration, the employee admitted that he smoked marijuana both before he was tested and after he was tested and returned to work. The employee’s medical records also revealed that he asked his doctor about medical marijuana, but the employee’s doctor suspected he was attempting to “further his addiction.”

The arbitrator determined that the employer met its burden of showing just cause, reasoning that the legalization of marijuana “whether medicinal or recreational,” does not require employers to embrace the use of “legal” marijuana products. The arbitrator further found that the Department of Human Health and Services’ testing thresholds are “effective, lawful and enforceable,” and do not require “impairment.” The arbitrator recognized the employee’s significant tenure with the company, but ultimately found the employee’s dishonesty regarding his marijuana use was an aggravating circumstance and that his behavior was particularly egregious given his role on the safety committee.

Although the union setting is unique, this decision reinforces the importance of ensuring employees have notice of the employer’s position on marijuana and CBD products (recognizing any state law obligations), and to enforce a drug and alcohol testing policy consistently.

How New Jersey’s Recreational Marijuana Law Significantly Affects Workplace Drug Testing

New Jersey Governor Phil Murphy signed into law three marijuana reform bills on February 22, 2021. The first, New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (A21), legalizes and regulates cannabis use and possession for adults who are 21 and older. Two other laws decriminalize marijuana and hashish possession (A1897) and clarify marijuana and cannabis use and possession penalties for individuals younger than 21 years old (S3454).

Recreational Marijuana Law and Impact on Employers

New Jersey voters approved legalized recreational marijuana by ballot initiative on Election Day 2020. Now, that bill has been signed into law, although many provisions will not be operative for some time. The law creates a Cannabis Regulatory Commission to regulate the use, purchase, sale, and production of cannabis, among other things. The Commission will have 180 days (or 45 days from the date that all members of the Commission are appointed) to adopt rules and regulations to implement the law. It is generally expected that it will take at least a year before legalized cannabis is available in New Jersey.

The law permits anyone age 21 or older to possess, use, and purchase small amounts of cannabis. For purposes of the recreational marijuana law, the term “cannabis” excludes medical marijuana dispensed under the Jake Honig Compassionate Use Medical Cannabis Act, as well as hemp products under the New Jersey Hemp Farming Act.

The recreational marijuana law has several provisions that affect employers:

  • Employers may not refuse to hire or employ an individual who uses cannabis, unless failing to do so would place the employer in violation of a federal contract or cause it to lose federal funding.
  • Employers still are permitted to maintain drug- and alcohol-free workplaces and are not required to accommodate the use, possession, sale, or transfer of cannabis in the workplace and may prohibit being under the influence or intoxication during work hours.
  • Employers may not take adverse action against applicants or employees who use cannabis, or solely because the applicant or employee tests positive for cannabinoid metabolites. The law defines “adverse employment action” as refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.
  • However, employers still may require employees to undergo reasonable suspicion testing, post-accident testing, random testing, and pre-employment testing, as long as the drug test includes scientifically reliable testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the use of cannabis. The Commission, in consultation with the Police Training Commission, must prescribe standards for a Workplace Impairment Recognition Expert, who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and for assisting in the investigation of workplace accidents. Workplace Impairment Recognition Experts will be certified by the Commission. In accordance with these requirements, employers may use the results of the drugs when determining appropriate employment actions.

Decriminalization of Marijuana Law and Impact on Employers

Employers are not permitted to consider when making an employment decision and cannot require an applicant to reveal or take any adverse action against an applicant solely on the basis of any arrest, charge, or conviction for certain types of marijuana and hashish offenses.

Employers who violate this provision will be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. These penalties are the sole remedy provided for violations of this provision. It does not create a private right of action against an employer by an aggrieved person.

Practical Considerations

The provisions that affect employers are not immediately operative, and it is hoped the Commission’s rules and regulations will clarify the restrictions on workplace drug testing and the actions that employers may take in response to marijuana drug tests.

In the interim, New Jersey employers should review their drug and alcohol testing policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. Supervisors should be trained to make reasonable suspicion determinations and thought should be given to which individuals the employer will designate as Workplace Impairment Recognition Experts.

DOT Random Drug and Alcohol Testing Rates for 2021

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2021.  The random test rates did not change for 2021.

 

Agency 2021 Random Drug Testing Rate 2021 Random Alcohol Testing Rate
Federal Aviation Administration

 

25% 10%
Federal Motor Carrier Administration

 

50% 10%
Federal Railway Administration

 

25%  covered service 10%  covered service
Federal Railway Administration 50% maintenance-of-way 25% maintenance-of-way
Federal Transit Administration

 

50% 10%
Pipeline and Hazardous Materials Safety Administration

 

50% N/A
United States Coast Guard

 

50% N/A

 

 

Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination And Retaliation Claims

A federal court in Pennsylvania held that a medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.   Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Jan. 7, 2021).

The employer terminated the employee’s employment after she tested positive for marijuana on a return-to-duty drug test. The employee’s medical marijuana card was expired at the time she tested positive. However, she subsequently renewed it and provided a doctor’s note stating her positive test was consistent with her prescription (pre-expiration).

In September 2020, the employer moved to dismiss the employee’s claims for violation of the Pennsylvania Medical Marijuana Act (MMA), disability discrimination and retaliation. See Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020). The court denied the motion with respect to the MMA claim, but dismissed without prejudice disability discrimination and retaliation claims due the employee’s failure to exhaust her administrative remedies. We blogged about that decision here.

After exhausting her administrative remedies under the Pennsylvania Human Rights Act (PHRA) and Philadelphia Fair Practice Ordinance (PFPO), the employee re-asserted her disability discrimination and retaliation claims. The employee specifically claimed the employer failed to accommodate her disability and terminated her employment in retaliation for requesting accommodations.

Again, the employer moved to dismiss the claims. First, the employer argued that the employee’s medical marijuana use could not constitute a disability under the PHRA and that using marijuana is not a reasonable accommodation. The court rejected these arguments, reasoning that the employee alleged a specific medical condition (herniated disc and related spinal injuries) and her disability was not solely based on using medical marijuana. The court also found that she had requested several accommodations other than marijuana use — some of which the employer had granted in the past — and that the employer failed to engage in the interactive process.

The employer also argued the employee’s report of medical marijuana usage could not constitute protected activity for purposes of the employee’s retaliation claim.  But the court found that the employee’s request to split her time between work and home constituted a request for a reasonable accommodation and was sufficient to satisfy her burden on a motion to dismiss. The court further reasoned that it did not matter whether the employee’s medical marijuana usage fell outside of the PHRA’s definition of disability or handicap, because the employee only needed to show that she requested an accommodation in good faith. Her retaliation claim was not contingent on showing an actual disability.

Although the decision is in the early stages of the case, it highlights the fact that medical marijuana use is often intertwined with reasonable accommodation requests and may subject employers to disability discrimination and retaliation claims.

Pennsylvania Court Affirms Unemployment Benefits for Medical Marijuana User

A Pennsylvania Appeals Court affirmed an order granting unemployment benefits to a medical marijuana user who was terminated by his employer for a positive drug test.  The Pittsburgh Water and Sewer Auth. v. Unemployment Comp. Bd. of Review, Case No. 228 C.D. 2020 (Commw. Ct. Pa. Nov. 18, 2020).

The employee was employed as a customer service representative for four months.  The Pittsburgh Water and Sewer Authority (“Authority”) maintained a Drug and Alcohol Free Workplace Policy that prohibited the use of illegal drugs on or off duty, including marijuana, and included random drug testing.  The Policy, however, permitted the use of legal drugs that did not affect safety or job performance and defined “legal drug” as “prescription medications. . .that have been legally obtained”.  During the employee’s orientation, Human Resources explained that if an employee was selected for a drug screening, the employee would have an opportunity to verify his or her prescriptions that may impact the drug test results.  If the employee demonstrated the drug was lawfully prescribed, the test results would not be reported to the Authority.

Pursuant to the Policy, the Authority selected the employee for a random drug screening and he tested positive for marijuana.  The employee then submitted a copy of his medical marijuana patient identification card to the Medical Review Officer (“MRO”) who reviewed the positive drug test result.  The MRO forwarded the positive drug test result to the Authority.  The Authority terminated the employee on the grounds that marijuana is illegal under federal law.

The employee’s claim for unemployment benefits initially was denied on the grounds that he violated the Authority’s Drug Policy.  On appeal, however, the Unemployment Compensation Board of Review overturned the denial and determined that the employee was not disqualified for benefits under Section 402(e.1) of Pennsylvania’s Unemployment Compensation Law (relating to discharge for “failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy”).  The UCBR held that the employer’s policy stated that an employee’s positive drug test result would be excused if the employee possessed a prescription for lawful medication, and if the employer did not intend for that provision to cover medical marijuana, the policy should have said so.

In affirming the UCBR’s decision, the Court determined that the applicable unemployment compensation laws only require compliance with the employer’s drug policy.  Here, the employer’s policy with regard to the use of medical marijuana was ambiguous.  Because the employee provided the MRO with his valid patient identification card to explain his use of prescribed medical marijuana, the Court could not conclude that the MRO’s reporting of the employee’s drug test as a positive result was in accordance with the Authority’s Drug Policy.  Accordingly, the Court held the UCBR did not err by granting unemployment compensation benefits to the employee.

Employers should review their drug and alcohol policies to address the use of medical marijuana and its impact on drug test results.

Voters in Five States Approve Marijuana Ballot Initiatives on Election Day

Voters in Arizona, Mississippi, Montana, New Jersey, and South Dakota approved laws to legalize marijuana on Election Day 2020. Recreational marijuana was approved in Arizona, Montana, and New Jersey, while Mississippi voters approved medical marijuana. South Dakota voters approved both medical and recreational marijuana ballot initiatives.

Medical Marijuana

  1. Mississippi – Mississippi Ballot Measure 1 passed, with 68% voting “yes” and 32% voting “no.” Ballot Measure 1 asked voters to generally cast a vote for “either measure” Initiative 65 or Alternative 65A, or against both measures. Voters who cast a vote for “either measure” were then required to cast an additional vote for their preferred measure. Mississippi voters passed Initiative 65 with 74% voting for it and 23% voting for Alternative 65A.*

Initiative 65 allows the medical use of marijuana by patients who suffer from qualifying medical conditions. Qualified medical marijuana patients may possess up to 2.5 ounces of medical marijuana. The new law does not permit a qualifying patient to be “subject to criminal or civil sanctions for the use of medical marijuana.” However, it does not require “accommodation for the use of medical marijuana or require any on-site use of medical marijuana” in any place of employment. It also does not affect any “existing drug testing laws, regulations, or rules.”

The Mississippi State Department of Health has the authority to implement, administer, and enforce the law. It is required to issue final rules and regulations regarding medical marijuana by July 1, 2021. The Department must begin issuing medical marijuana identification cards and treatment center licenses no later than August 15, 2021.

  1. South Dakota – South Dakota’s Initiated Measure 26 passed, with 69% voting “yes” and 31% voting “no.” The new law allows the medical use of marijuana by patients who suffer from a debilitating medical condition. Medical marijuana card holders may possess up to three ounces of marijuana and cultivate marijuana plants. The law goes into effect July 1, 2021, but it may take up to a year before medical marijuana is available in the state.

Under the new law, medical marijuana cardholders are entitled to “all the same rights under state and local laws” as the person would be afforded if they were prescribed a pharmaceutical medication as it pertains to: (1) any interaction with a person’s employer; (2) drug testing by a person’s employer; and (3) drug testing required by any state or local law, agency, or government official.

The new law requires the South Dakota Department of Health to issue regulations regarding medical marijuana within 120 days after the law goes into effect (October 29, 2021) and to begin issuing registry identification cards to qualifying patients within 140 days after the law goes into effect (November 18, 2021).

The new law does not apply to employers to the extent it would conflict with the employer’s obligations under federal law or regulation or if it would disqualify an employer from a monetary or licensing-related benefit under federal law or regulation.

Although employers may discipline employees for ingesting marijuana in the workplace or for working while under the influence of marijuana, employers may not consider a qualifying patient to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in “insufficient concentration to cause impairment.” Employers in South Dakota should take note of this language because there is no universally accepted concentration of marijuana that proves “impairment.”

Recreational Marijuana

  1. Arizona – The Smart and Safe Arizona Act passed with nearly 60% voting “yes” and 40% voting “no.” Under the Smart and Safe Arizona Act, individuals 21 years of age or older may lawfully use and purchase less than one ounce of marijuana (except, not more than five grams may be in the form of marijuana concentrate) and may cultivate up to six marijuana plants for personal use at the individuals’ primary residence (subject to certain restrictions). The new law does not include a delayed effective date, but it will likely be several months before Arizonans can purchase recreational marijuana.

The new law requires the Arizona Department of Health Services to begin accepting applications for marijuana establishment licenses from “early applicants” beginning January 19, 2021 through March 9, 2021. Licenses will be issued to qualified applicants within 60 days of receiving an application.

The new law does not restrict the rights of employers to “maintain a drug-and-alcohol free workplace” or prevent employers from having workplace policies “restricting the use of marijuana by employees or prospective employees.” It also does not require employers to “allow or accommodate the use, consumption, possession, transfer, display, transportation sale or cultivation of marijuana in a place of employment,” nor does it restrict employers from prohibiting or regulating marijuana use that occurs on or in their properties.

Arizona passed the Arizona Medical Marijuana Act in 2010, prohibiting employers from discriminating against medical marijuana patients. The recreational marijuana law expressly states that is it not intended to limit any privilege or right of a qualifying patient under the Arizona Medical Marijuana Act.

  1. Montana – Montana’s Initiative 90 and Constitutional Initiative 118 both passed with approximately 57% voting “yes” and 43% voting “no” for Initiative 90.  Effective January 1, 2021, individuals age 21 or older may possess, use, or transport one ounce or less of marijuana, and grow up to four mature marijuana plans and four seedlings on the grounds of a private residence. The Montana Constitution provides that a person 18 years of age or older is an adult for all purposes, except that a different legal age may be established for purchasing, consuming, or possessing alcoholic beverages. Effective October 1, 2021, the Montana Constitution will similarly permit a different legal age (i.e., 21 years of age or older) to be established for the purchase, consumption, or possession of marijuana.

Certain provisions of the new law go into effect on October 1, 2021, which is the deadline for the Department of Revenue to issue rules and regulations related to licensure of adult-use marijuana providers and dispensaries. The Department must begin accepting applications from dispensaries, providers, and manufacturers on or before January 1, 2022. However, for the first 12 months, the Department will only accept such applications from providers and dispensaries licensed under Montana’s medical marijuana statute.

The new law does not impose restrictions on employers. It states that is may not be construed to: (1) require an employer to permit or accommodate recreational marijuana use (or any other conduct permitted by the law) in any workplace or on the employer’s property; (2) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana; (3) prevent an employer from declining to hire, discharging, or otherwise taking adverse action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual’s violation of a workplace drug policy or intoxication by marijuana while working.

Montana has had a medical marijuana law since 2004.

  1. New Jersey – New Jersey’s Question 1 passed with 67% voting “yes” and only 33% voting “no.” Effective January 1, 2021, the New Jersey Constitution will be amended to legalize recreational use of marijuana for adults ages 21 and older. The constitutional amendment provides for the Cannabis Regulatory Commission to regulate recreational marijuana and subjects all retail sales of recreational marijuana products to state sales tax.

The Cannabis Regulatory Commission and New Jersey lawmakers will address the regulatory issues that will determine the amount individuals can possess legally, the requirements for operating dispensaries for sale of cannabis, and taxation by state and local authorities. This process is expected to take up to approximately one year.

New Jersey has approved the use of medical marijuana since 2013. Under 2019 amendments to the Jake Honig Compassionate Use Act, employers are not permitted to discriminate against those who use cannabis for medical reasons.

  1. South Dakota – South Dakota’s Constitutional Amendment A passed with 53% voting “yes” and 47% voting “no.” Effective July 1, 2021, the new law permits individuals 21 years of age or older to possess and use one ounce or less of marijuana and to grow up to six marijuana plants on the grounds of a private residence.

No later than April 1, 2022, the South Dakota Department of Revenue is required to issue rules and regulations related to the commercial sale, cultivation, and testing of marijuana. The new law also directs the legislature to pass laws regulating the cultivation, processing, and sale of hemp and medical marijuana by April 1, 2022.

The new law does not require employers to permit or accommodate conduct authorized by it. It also does not affect an employer’s ability to restrict the use of marijuana by employees.

Next Steps

Employers should review their drug and alcohol policies – especially drug and alcohol testing policies – for compliance with applicable state laws.

While marijuana remains a Schedule I drug under the federal Controlled Substances Act, the trend in the courts over the last three years is to disregard marijuana’s status under federal law and to enforce state laws instead (with the exception of federally regulated employees such as those regulated by the U.S. Department of Transportation).

Employers must be familiar with the marijuana laws in the states where they operate before taking employment actions against those who use marijuana.

Request For Medical Examination Was Permissible Under ADA After Positive Drug Test Result

A federal court in Indiana dismissed an employee’s claim that his employer did not have the right to request a medical examination after he tested positive for drugs and subsequently admitted that he was taking numerous prescription medications that could create a safety risk.  Beal v. Muncie Sanitary District, Case No. 1:19-cv-01506 (S.D. Ind. Oct. 22, 2020).

The employee worked in a maintenance position for the District, which provided water and environmental sanitary services to the city of Muncie.  His job required him to drive a truck and to operate heavy machinery.  On April 6, 2018, the employee was involved in a minor accident while driving his truck at work.  There were no injuries and no damage to the truck.  In accordance with the District’s policy, the employee was sent for post-accident drug and alcohol testing.  The employee tested positive for opiates, benzodiazepines and oxycodone.  The testing laboratory advised the District that there could be a safety risk associated with one or more of his medications.  The District allowed the employee to return to work but removed him from performing safety-sensitive functions.

The District thereafter issued a written reprimand to the employee for failing to disclose the use of potentially dangerous prescription medications prior to performing safety-sensitive functions.  The employee refused to sign the reprimand, but admitted that he was taking allopurinol, lorazepam, citalopram, propranolol, and hydrocodone.

The employee’s doctor cleared him to return to work, including the performance of safety-sensitive functions.  The District’s Medical Review Officer (MRO), however, disagreed.  (A MRO is a physician who reviews positive drug test results on behalf of an employer).  The MRO stated that the employee could return to safety-sensitive work if the doctor would change the dosage of one of his medications, and if the employee would agree not to take hydrocodone within 8 hours of work.  The employee’s doctor refused, stating that the employee would not be able “to function in normal life or hold a job.”

Because the employee’s doctor and the MRO disagreed, the District requested that the employee submit to a medical examination by a third-party physician.  When the employee refused, he was fired.

The employee then filed a lawsuit, alleging violations of the Americans With Disabilities Act of 1990 arising out of his termination, including discrimination, retaliation, and failure to accommodate his needs relating to his prescription medications.

Specifically, the employee claimed that forcing him to submit to a medical examination constituted disability discrimination.  The court disagreed, noting that the ADA permits medical examinations and inquiries when “job-related and consistent with business necessity.”  Because the drugs prescribed to the employee could impair his ability to perform his essential job functions (such as operating heavy machinery), it was reasonable for the District to ask him to submit to a medical examination.  Moreover, there also was a public safety risk because the employee was required to drive a truck.  Holding that the medical examination was permissible, the court stated, “[a]ny other ruling would force the District to untenably risk a negligence suit to avoid violating the ADA.”

LexBlog