Nebraska voters approved medical cannabis measures, while voters in Florida, North Dakota, and South Dakota rejected ballot initiatives to legalize recreational cannabis on election day.

Nebraska Medical Cannabis Measures

Nebraska voters approved Ballot Initiatives 437 and 438, which legalize and regulate medical cannabis in the state. While the measures were widely supported, there is lingering uncertainty due to pending legal challenges about the validity of signatures on each measure’s petition for ballot access. It may be weeks before the Lancaster County District Court decides whether the initiatives were properly on the ballot.

Setting aside the pending legal challenges, the State Canvassing Board will meet to certify statewide voting totals on Dec. 2, 2024 (the fourth Monday following the election). Within 10 days after certification of the results by the State Canvassing Board, the governor must issue a proclamation declaring the approved measures to be in full force and effect.

Initiative 437, the Nebraska Medical Cannabis Patient Protection Act, would allow qualified patients to use, possess, and acquire up to five ounces of cannabis for the alleviation of a medical condition, its symptoms, or side effects of the condition’s treatment. Caregivers would also be permitted to possess and acquire up to five ounces of cannabis on behalf of the qualified patient.

The law defines “qualified patient” as an individual 18 years of age or older with a written recommendation from a health care practitioner stating that, in the practitioner’s professional judgment, the potential benefits of cannabis outweigh the potential harms for the alleviation of a patient’s medical condition, its symptoms, or side effects of the condition’s treatment. Individuals under 18 years of age require both a written recommendation from a health care practitioner and written permission of an authorized legal guardian or parent.

Initiative 438, the Nebraska Medical Cannabis Regulation Act, would create the Nebraska Medical Cannabis Commission and vests the commission with authority to “regulate all phases of the control of the possession, manufacture, distribution, delivery, and dispensing” of medical cannabis for medical purposes by registered cannabis establishments.

Neither ballot measure addresses employer rights or obligations with respect to medical cannabis or qualified patients. However, there may be some risk of employment discrimination claims associated with medical cannabis. The Nebraska Fair Employment Practice Act (NFEPA) does not protect current users of illegal drugs, but illegal drug use under the law does not include “the use of a drug taken under supervision by a licensed health care professional…or any other use authorized by…other provisions of state law.” Additional legislation or guidance from Nebraska courts is needed to clarify the protections available to qualified patients under NFEPA, if any.

If the laws take effect, employers should consult with counsel before taking adverse employment action against qualified patients based on lawful medical cannabis use.

The Pittsburgh City Council unanimously passed an ordinance prohibiting discrimination against medical marijuana patients in the workplace and limiting certain types of marijuana drug testing by employers as to these patients. Mayor Ed Gainey is expected to sign the measure and it will take effect immediately after signing.   

Pennsylvania state law already protects medical marijuana users from employment discrimination.

The Pittsburgh Ordinance applies to any employer, employment agency, or labor organization that employs at least five employees. Employers excluded from coverage are religious, fraternal, charitable, and sectarian organizations not supported in whole or in part by any governmental appropriations.

The Pittsburgh Ordinance protects individuals who have a “serious medical condition, disability, or handicap such that qualifies them for medical marijuana use,” as well as individuals who are certified under the Pennsylvania State Medical Marijuana Act of 2016 (Act 16) to access marijuana for a certified medical use.

Under the Pittsburgh Ordinance, an employer may not require pre-employment testing for marijuana or testing for marijuana during the course of employment as a condition of continued employment or prospective employment. However, exceptions include:

  • Any position which is subject to drug testing due to regulations of the U.S. Department of Transportation or Pennsylvania Department of Transportation;
  • Any position requiring the employee to carry a firearm; and
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing.

Like under Act 16, the Pittsburgh Ordinance provides that medical marijuana patients may not operate or be in physical control of certain regulated chemicals, high-voltage electricity, or any other public utilities if they have more than 10 nanograms of active THC in their bloodstream. Medical marijuana patients also may not perform certain tasks or duties while under the influence of marijuana such as ones at heights or in confined spaces (for example, mining), any task deemed to be life-threatening to either the employee or employer, and any duty that could result in a public health or safety risk.

Pittsburgh employers may:

  • Conduct marijuana drug testing when there is reasonable cause to suspect an employee is under the influence of a drug while at work or after a workplace accident.
  • Take disciplinary action against a medical marijuana patient if the employee’s conduct falls below the standard of care normally accepted for that position while under the influence in the workplace.

Moreover, employers do not have to allow use of medical marijuana on workplace premises or property. They also are permitted to conduct testing for illegal use of controlled substances. Employers located and operating in the Pittsburgh area should reevaluate their hiring policies and drug policies and ensure they are consistent with the Pittsburgh Ordinance, state law, and federal law.

The Drug Enforcement Administration announced on August 29, 2024 that it will hold a public hearing to address the proposed rescheduling of marijuana from Schedule I to Schedule III of the federal Controlled Substances Act (CSA).  The hearing will take place on December 2, 2024 at 9 am ET at 700 Army Navy Drive, Arlington, Virginia 22202. 

The purpose of the hearing is to “receive factual evidence and expert opinion regarding” whether marijuana should be transferred to Schedule III of the federal CSA.

Under the federal CSA, the DEA classifies drugs into five distinct categories, or schedules, depending on the drug’s acceptable medical use and its potential for abuse or dependence. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. As the drug schedule changes, so does the abuse potential, with Schedule V representing the drugs with least potential for abuse. Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence.

If the rule is finalized, marijuana would be available for medical use only, not legalized at the federal level.

DEA published its Notice of Proposed Rulemaking on May 21, 2024.  It received more than 43,000 comments on the proposed reclassification.

Anyone who wishes to participate in the hearing must provide written notice of their desired participation on or before September 30, 2024, in accordance with the regulatory requirements published in the Federal Register notice.

In November 2023, Ohio passed a recreational marijuana law. Sales of recreational marijuana began on August 6 in the Buckeye State, and employers can expect an uptick in employee use.

Employers’ rights with respect to marijuana use are unaffected by the new law. Employers are not:

  • Required to permit or accommodate an employee’s use, possession, or distribution of marijuana; nor
  •  Prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse action against an individual because of the individual’s use, possession, or distribution of marijuana.

This is true even if an individual’s marijuana use is lawful and off-duty. The new law does not create a cause of action for employees or applicants based on any such action by an employer. Employers in Ohio can continue enforcing drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Employers that continue to prohibit marijuana use and plan to test for it may want to remind employees of the company’s policy, requirements, and expectations. Among other things, Ohio employers should ensure their drug and alcohol policies clearly state that marijuana may not be used during work time, including during meal breaks and rest breaks, and that marijuana impairment during work time will not be tolerated.

It is also a good time to reevaluate drug policies to determine whether they are tailored to the needs of the business and consistent with both state and federal law. Should you have questions about marijuana-related legal developments in Ohio and around the country(as each state is different), or need assistance revising your drug and alcohol policy, please contact the Jackson Lewis attorney with whom you usually work or a member of our Drug Testing and Substance Abuse Management team.

Minnesota will amend its drug testing law to permit oral fluid testing for drugs, cannabis and alcohol, effective August 1, 2024.

The Drug and Alcohol Testing in the Workplace Act (“DATWA”) currently requires employers who conduct drug and alcohol testing to use specific certified laboratories and to permit confirmatory re-testing after an applicant or employee tests positive.  Under the new provision, oral fluid testing will be permitted for drugs, cannabis, and alcohol, and will not require the services of a testing laboratory.  Moreover, employers will not be required to follow the written notice requirements for positive and negative test results and the right to confirmatory re-testing that DATWA requires for other types of drug and alcohol tests. 

“Oral fluid test” means analysis of saliva at threshold detection levels contained in the standards of one of the programs listed in DATWA (i.e., for drugs and cannabis:  the National Institute on Drug Abuse, the College of American Pathologists, and the New York Department of Health; or for alcohol:  the College of American Pathologists and the New York Department of Health).

Employees and applicants must be informed of the test result at the time of the oral fluid test.  Within 48 hours of an oral fluid test that is positive, inconclusive or invalid, the employee or applicant may request drug, alcohol or cannabis testing at no cost to the employee or applicant using the services of a testing laboratory specified by DATWA.  All of DATWA’s existing written notice requirements and rights to a confirmatory re-test will apply to such testing. 

Minnesota employers should consider whether oral fluid testing is right for their workplace.  Employers will need to revise their written drug, cannabis and alcohol testing policies to incorporate the requirements for oral fluid testing.

The Department of Justice (DOJ) published a Notice of Proposed Rulemaking to reschedule marijuana from Schedule I to Schedule III of the federal Controlled Substances Act (CSA) in the Federal Register on May 21, 2024. If the rule is finalized, marijuana would be considered a drug with “moderate to low potential for physical and psychological dependence” and would be available for medical use only, not legalized at the federal level.

Under the federal CSA, the Drug Enforcement Administration (DEA) classifies drugs into five distinct categories, or schedules, depending on the drug’s acceptable medical use and its potential for abuse or dependence. Schedule I drugs are defined as having no currently accepted medical use and a high potential for abuse. As the drug schedule changes, so does the abuse potential, with Schedule V representing the drugs with least potential for abuse. Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are Tylenol with codeine, ketamine, buprenorphine, and anabolic steroids.

Marijuana has been a Schedule I drug since the inception of the CSA in 1970. In August 2023, the Department of Health and Human Services (DHHS) recommended that marijuana be rescheduled to Schedule III. The CSA requires that such a change be made through formal rulemaking on the record after an opportunity for a hearing.

If the transfer to Schedule III is finalized, any drugs containing marijuana will be subject to the applicable prohibitions in the federal Food, Drug, and Cosmetic Act, enforced by the Food and Drug Administration (FDA).

Additionally, if marijuana is transferred to Schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA.

Eight-Factor Analysis

The Notice of Proposed Rulemaking set forth the following eight factors that are used when considering rescheduling. The conclusions reached by DHHS and DOJ suggest that they do not agree on all of these issues:

  1. The drug’s actual or relative potential for abuse. DHHS concluded that marijuana does not lead to substance use disorder as frequently as other substances such as heroin, oxycodone, fentanyl, cocaine, alcohol and others. In 2016, DEA found that marijuana had a high potential for abuse and now recommends gathering additional data to assess marijuana’s actual or relative potential for abuse.
  2. Scientific evidence of its pharmacological effect, if known. In the past 30 years, the potency of marijuana’s delta-9 THC has increased dramatically. While DHHS noted that marijuana use can produce pleasurable effects, it may also induce sedation and anxiety responses. Abuse can lead to addiction and the need for medical attention. DEA believes that additional data is necessary to assess this factor.
  3. The status of current scientific knowledge regarding the drug or other substance. DHHS found that inhaling marijuana produces immediate effects while oral administration produces a slower onset of psychological effects. DEA noted that additional data regarding routes of administration of marijuana and the impact on delta-9 THC potency may be appropriate for consideration.
  4. Its history and current pattern of abuse. DHHS concluded that the prevalence of marijuana is less than that of alcohol and significantly more than that of other drugs. DEA found in 2016 that marijuana is the most widely used illicit drug and anticipates that additional information arising from this rulemaking will further inform the findings with regard to rescheduling.
  5. The scope, duration, and significance of abuse. DHHS concluded that drugs other than marijuana, such as alcohol, heroin, and cocaine, are more likely to lead to substance use disorder. DEA found in 2016 that the abuse of marijuana was widespread and one of the primary drugs leading to admission for substance abuse treatment.
  6. What, if any, risk there is to the public health. DHHS found that the risks posed by marijuana use to public health are low compared to other drugs. For overdose deaths, marijuana always is ranked lowest. DEA concluded in 2016 that marijuana poses a number of risks to public health, including impaired driving and physical and psychological dependence. DEA anticipates that additional data on public safety risks may be appropriate for consideration.
  7. Its psychic or physiological dependence liability. DHHS found that marijuana can produce both psychic and physical dependence in humans, although the symptoms are usually mild. In 2016, DEA found that long-term heavy use of marijuana can lead to physical and psychological dependence and that this dependence is underdiagnosed and undertreated in the medical setting. DEA anticipates that additional information may be appropriate for consideration.
  8. Whether the substance is an immediate precursor of a substance already controlled. DHHS and DEA both concluded that marijuana is not an immediate precursor of another controlled substance.

Rationale for Schedule III

Despite the apparent disagreement on many issues, DOJ ultimately concurs with the recommendation to reschedule marijuana to Schedule III. First, DHHS and DOJ both agree that marijuana has a potential for abuse less than other drugs and substances listed in Schedules I and II.

Second, DHHS recommended a finding that marijuana has a currently accepted medical use in the United States, specifically for medically supervised treatment of anorexia related to a medical condition, nausea and vomiting (e.g., chemotherapy-induced), and pain. DOJ concurs with DHHS’s conclusion for purposes of the initiation of the rulemaking proceedings.

Finally, as to the level of physical or psychological dependence, DOJ agrees with DHHS’s conclusion that the abuse of marijuana may lead to moderate or low physical dependence, depending on the frequency and degree of marijuana exposure.

Types of Marijuana to be Rescheduled

Rescheduling applies to marijuana as defined by the CSA, including delta-9 THC derived from the marijuana plant (other than the mature stalks and seeds) that falls outside the definition of hemp. Rescheduling does not apply to synthetic marijuana or hemp. Synthetic marijuana (e.g., delta-10) will remain on Schedule I.

Comments on the Notice of Proposed Rulemaking may be submitted electronically within 60 days of May 21, 2024. It will take months for DEA to review those comments, so it is unclear when or if the rule might be finalized.

Impact on Employers

Rescheduling marijuana to Schedule III will not clear up the questions and difficulties that employers face when enforcing their drug policies, particularly their drug testing policies. It may take a long time for the FDA to regulate marijuana. In the meantime, employees already are obtaining it under state laws at state-approved dispensaries. It is unclear how federal regulation will impact the current systems of state regulation in the states that have them.

Once marijuana begins to be regulated and available at the federal level, there may be legal claims asserted under the federal Americans With Disabilities Act (ADA) related to requests for reasonable accommodations. ADA claims related to marijuana use generally have been rejected by the courts because marijuana was illegal at the federal level.

Additionally, making marijuana a Schedule III drug still leaves a conflict with state recreational marijuana laws (adult-use laws) that permit use of marijuana without a medical prescription. For employers who conduct drug testing, there still will be many different state and local laws impacting marijuana drug testing; the change at the federal level will not make compliance with those laws any easier.

The U.S. Drug Enforcement Administration will recommend that marijuana should be rescheduled from a Schedule I drug to a Schedule III drug, according to an announcement made April 30, 2024 by the U.S. Department of Justice.  This means that marijuana would be considered a drug with “moderate to low potential for physical and psychological dependence.”

Under the federal Controlled Substances Act, the DEA classifies drugs into five distinct categories, or schedules, depending on the drug’s acceptable medical use and its potential for abuse or dependence.  Schedule I drugs have a high potential for abuse and the potential to create severe psychological and/or physical dependence.  As the drug schedule changes, so does the abuse potential, with Schedule V representing the drugs with least potential for abuse.

Marijuana has been a Schedule I drug since the inception of the Controlled Substances Act in 1970.  Schedule I drugs are defined as having no currently accepted medical use and high potential for abuse.  Examples of Schedule I drugs include heroin, LSD, Ecstasy, methaqualone and peyote.

Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs are: Tylenol with codeine, ketamine, buprenorphine and anabolic steroids.

This move was expected after the U.S. Department of Health and Human Services recommended in August 2023 that DEA reschedule marijuana to Schedule III.

The DEA’s proposal now must be reviewed by the White House Office of Management and Budget.  Once OMB agrees, DEA will then accept public comments.  After the public comment period, an administrative judge will review the proposal.  If accepted, the DEA will publish a final rule.

Once marijuana becomes a Schedule III drug, it will be available for medical use and can be prescribed by health care providers and dispensed by pharmacies.  This reclassification also will relieve the tax burden on cannabis businesses and benefit the financial institutions who work with these businesses.

Impact on Employers

The most significant impact on employers once marijuana is permitted for medical use at the federal level is that there likely will be more legal claims asserted under the federal Americans With Disabilities Act related to requests for reasonable accommodations.  Up until this time, ADA claims related to marijuana use generally were rejected by the courts because marijuana was an illegal drug at the federal level.  Users of marijuana had to file claims under state law if the applicable state law permitted it.

Additionally, making marijuana a Schedule III drug at the federal level still leaves a conflict with state recreational marijuana laws that permit use of marijuana without a medical prescription.  For employers who conduct drug testing, there still will be many different state and local laws impacting marijuana drug testing; the change at the federal level will not make compliance with those laws any easier. 

Rescheduling marijuana to Schedule III also does not impact hemp products with no more than .3% THC which were legalized at the federal level a few years ago, although they are not being regulated.  The Food and Drug Administration stated last year that it wants to work with Congress on “new regulatory pathways” for hemp and CBD products but no such “pathways” have materialized.  In March 2024, twenty-one state Attorneys General signed a letter asking Congress to revise the Farm Bill that legalized hemp products to clarify that there can be no loophole for any products that cause intoxication.  The letter pointed out that “ . . . the reality is that this law has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children – with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in.”

The proliferation of these hemp and CBD products also makes workplace drug testing complicated because drug tests generally cannot distinguish between marijuana, hemp and CBD and generally cannot detect recent use or current impairment.

A recent Iowa court decision highlights the risks to employers who do not strictly comply with all facets of the state’s drug testing law, Iowa Code Section 730.5, which is one of the nation’s most technical drug testing laws.   Scott Hampe v. Charles Gabus Motors Inc. d/b/a Toyota of Des Moines et ano., No. 22-1599 (Iowa Court of Appeals January 10, 2024).

Hampe worked for Gabus for fourteen years.  Gabus’s employee handbook stated that the drug and alcohol testing program complied with Iowa Code Section 730.5 and that violations of the policy could result in disciplinary action up to and including termination.  Gabus’s policy included random testing and all active employees were included in the random testing pool.

Hampe was scheduled to work on December 5, 2019, the day that a random test was scheduled.  He had an appointment with customers at 9:00 am but planned to leave work after that appointment because his daughter was sick and home from school.  But when he arrived at work at 9:00, he was advised to report for a random test.  Hampe’s first test was out of temperature range and he was told to wait and then submit another specimen.  Ten minutes later, he was unable to produce another urine specimen.  Hampe returned to the waiting room to drink more water but after twenty minutes, he stated that he needed to leave because his daughter was home sick.  He was advised that if he left, it would constitute a refusal to test and he would be fired.  Hampe said that he shouldn’t have even been selected because his name was not on the list.  (There was an initial list of employees to be tested along with an alternate list in the event that employees on the initial list were not present at work that day.  Hampe’s name was the last name on the alternate list).

Hampe was terminated for refusing to test and filed suit under the Iowa drug testing law, which provides a private right of action to aggrieved individuals.  The law also states that the employer has the burden of proving compliance with the law’s requirements.  

Hampe’s claims initially were dismissed but on appeal, the court held that further proceedings would be allowed to resolve these issues:

  • The Random Testing Pool – Gabus used a list of all employees.  Hampe argued that such a list does not comply with the law because the list did not ensure that those selected would be at work on the test date.  Gabus argued that its selection process was compliant because there was a back-up list to make up for those employees who were not at work on the test date.  Hampe also argued that a month before the test at issue, he was called in for a drug test on his day off, leading the court to conclude that there were issues of fact on this issue.
  • Supervisor Training requirements – Hampe claimed that the only supervisor involved in the random testing was not trained.  Iowa law requires initial training and annual training of supervisors.  The court concluded that there was an issue of fact as to whether the supervisor involved in the random testing had completed annual trainings that complied with the statute’s requirements.
  • Uniform Disciplinary Policy – Gabus’s policy allowed the employer to take a variety of potential disciplinary actions in response to a policy violation.  The court held that “the statute requires uniform requirements for what actions the employer ‘shall’ take.”  Hampe also argued that other employees were treated differently and more favorably than he, giving rise to issues of fact.

Iowa employers must ensure that their drug and alcohol testing policies comply with all requirements of Iowa Code Section 730.5.

Happy New Year!  The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2024.  These rates are the annual minimum drug and alcohol random testing rates. The rates are the same as the 2023 rates.

Agency2024 Random Drug Testing Rate2024 Random Alcohol Testing Rate
Federal Aviation Administration  25%10%
Federal Motor Carrier Administration  50%10%
Federal Railroad Administration  25%  covered service10%  covered service
Federal Railroad Administration25% maintenance-of-way10% maintenance-of-way
Federal Railroad Administration50% Mechanical25% Mechanical
Federal Transit Administration  50%10%
Pipeline and Hazardous Materials Safety Administration  25%N/A

The Biden Administration has released a Recovery-Ready Workplace Toolkit: Guidance and Resources for Private and Public Sector Employers. The Toolkit is part of Administration’s efforts to beat the opioid epidemic.   It provides information, tools, and resources to help employers effectively prevent and respond to substance misuse in the workforce and reduce its impact on employers and on the broader community. 

The Toolkit encourages employers to institute “Recovery Ready Workplaces” to help reduce the stigma of substance use disorders and promote employment opportunities for those recovering from those disorders. Among other things and as feasible, “recovery ready” employers will take actions and adopt policies to:

• Hire people in recovery, including those with a history of criminal justice system (CJS) involvement related to their substance use;

• Identify work-related risk factors for substance use and take steps to address them;

• Ensure employees have access to treatment, recovery supports and other services and supports they need;

• Delineate clear return-to-work polices to facilitate a successful transition back to the workplace following treatment or to manage work during treatment when an absence is not required;

• Offer appropriate medical or disability leave to receive treatment for injuries and other conditions leading to pain and to receive SUD treatment when needed;

• Provide for reasonable accommodations, such as scheduling flexibility or leave to permit receipt of outpatient treatment or recovery support services or to participate in mutual aid meetings, such as Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and SMART Recovery;

• Allow for temporary reassignment from certain safety-sensitive positions when needed;

• Plan for the return to work following SUD treatment or the continuation of work during treatment, providing needed reasonable accommodations and workplace supports, if available, and specifying expectations, milestones and time lines;

• Permit temporary or permanent modification of minor job requirements or reassignment to a vacant position as a reasonable accommodation when warranted;

• Support employee resource groups (ERGs) or other employee-led activities by or on behalf of employees in recovery from SUD; and,

• Facilitate access to peer recovery support services or peer mentoring in the workplace provided by recovering employees who volunteer to serve in such a role, by individuals employed to serve in that function, through an agreement with a recovery community organization (RCO) or other entity, or with the help of local volunteers.

The intent is to reduce the stigma around substance use disorders, provide employment opportunities, maintain safe workplaces, and demonstrate to employees that their employer supports individuals in recovery.