The state of Washington will prohibit employers from making hiring decisions based on off-duty use of cannabis or positive pre-employment drug test results that find an applicant to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. The new law (SB 5123) takes effect on January 1, 2024.

Noting that recreational cannabis was legalized in Washington in 2012 and that it should now be treated like alcohol (also a legal substance), the new law is intended to prevent restricting job opportunities based on an applicant’s past use of cannabis.

Cannabis metabolites can stay in the body for long periods of time and most drug tests will detect nonpsychoactive cannabis metabolites for up to 30 days after use. Past use of marijuana has no correlation to an applicant’s future job performance given that marijuana is a legal substance.

The law does not prohibit employers from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. Like a similar California law that also will take effect in 2024, the Washington law contains no explanation of what is meant by “nonpsychoactive cannabis metabolites” and, presently, there are no drug tests that can distinguish between psychoactive metabolites (those that create a “high”) and nonpsychoactive metabolites. If no such drug tests are developed by January 1, 2024, Washington employers will not be able to test for marijuana on pre-employment drug tests.

The law further states that it does not prohibit employers from maintaining a drug and alcohol-free workplace and does not affect any other rights or obligations of an employer required by federal law or regulation.

Employers still may drug test for marijuana on tests other than pre-employment, such as post-accident and reasonable suspicion. Additionally, employers still may test for other drugs, as well as alcohol.

The law does not apply to applicants seeking:

  • Positions requiring a federal government background investigation or security clearance;
  • Certain law enforcement positions;
  • Certain fire department positions;
  • First responders (including 911 dispatchers) positions;
  • Corrections officers positions;
  • Positions in the airline or aerospace industries;
  • Safety-sensitive positions for which impairment while working presents a substantial risk of death. Such safety-sensitive positions must be identified by the employer prior to the applicant’s application for employment.

The law does not preempt state or federal laws requiring an applicant to be tested for drugs. This includes testing that is related to the receipt of federal funding or federal licensing-related benefits or as required by a federal contract.

It is permissible to test applicants for cannabis, as along as the test result is not provided to the employer.

Washington employers should review their drug and alcohol testing policies to ensure that they will comply with the law as of January 1, 2024.

Delaware became the latest state to legalize recreational marijuana on April 23, 2023 when the state’s Governor failed to veto two bills that allow for the legalization of marijuana, effective immediately.  Individuals who are 21 years of age and older may possess and use up to one ounce of marijuana.  It will be taxed in a manner similar to alcohol.

The law provides that nothing in the law is “intended to impact or impose any requirement or restriction on employers with respect to terms and conditions of employment including but not limited to accommodation, policies or discipline.”  This means that employers in Delaware do not have to permit marijuana use at work or during work time and still may drug test for marijuana and take disciplinary action for positive test results. 

Employers should bear in mind, however, that the use of medical marijuana still is protected under Delaware law, as it has been since 2011. The new recreational marijuana law does not change the rights of users of medical marijuana.  Specifically, the Delaware Medical Marijuana Act provides, in pertinent part, that “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment . . . if the discrimination is based upon either of the following: a. [t]he person’s status as a cardholder; or b. [a] registered qualifying patient’s positive drug test for marijuana . . . unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during his hours of employment.”

Delaware joins a growing list of states that have adult-use recreational marijuana laws.  Employers should review their drug and alcohol policies frequently to ensure that they are complying with all applicable state and local marijuana laws.

Kentucky Governor Andy Beshear signed into law Senate Bill 47 on March 31, 2023 which legalizes medical cannabis in Kentucky.   Under the law, eligible Kentucky residents will be able to apply for a registry identification card as a registered qualified patient after obtaining a written certification from the individuals’ medical practitioner.  Out-of-state registry identification cards also will be accepted in some circumstances. 

Qualifying medical conditions include any type or form of cancer; chronic, severe, intractable, or debilitating pain; epilepsy or other intractable seizure disorder; multiple sclerosis, muscle spasms, or spasticity; chronic nausea or cyclical vomiting syndrome that has proven resistant to other conventional medical treatments; and post-traumatic stress disorder.  Additional medical conditions or diseases may also be approved by the Kentucky Center for Cannabis.  The use of medical cannabis does not include cultivation of marijuana by a cardholder, the use or consumption of marijuana by smoking, or the use of industrial hemp.

The employer-friendly law does not permit a cause of action against an employer for discrimination or wrongful discharge.  It does not require employers to permit or accommodate the use, consumption, possession, transfer, display, transportation, distribution, sale or growing of medical cannabis in the workplace. 

Employers may implement policies promoting workplace health and safety by restricting the use of medicinal cannabis by employees, or restricting or prohibiting the use of equipment, machinery, or power tools by an employee who is a registered qualified patient if the employer believes such use poses an unreasonable safety risk.  The law does not prohibit employers from including in any contract provisions that prohibit the use of medical cannabis by employees, nor does it prohibit employers from establishing and enforcing drug testing policies, drug-free workplaces, or zero-tolerance drug testing policies. 

A registered cardholder may not be considered under the influence of cannabis solely because of the presence of tetrahydrocannabinol metabolites.  However, if an employer determines that an employee who is a cardholder is impaired by the use of cannabis based on a behavioral assessment of impairment and a secondary step of testing for cannabis, the burden of proving non-impairment shifts to the employee to refute the findings of the employers.  An employee who is discharged from employment for consuming medicinal cannabis, working while under the influence of medicinal cannabis, or testing positive for a controlled substance will be ineligible for unemployment if such actions are in violation of an employment contract or established personnel policy.  In addition, the law does not require private health insurers, workers’ compensation carriers, of self-funded employers providing workers’ compensation benefits to reimburse a person for costs associated with the use of medicinal cannabis.

The law also restricts cardholders from consuming medical cannabis or being under the influence of medical cannabis while performing certain tasks, such as operating, navigating or being in control of an aircraft, vehicle, vessel or other device that is powered by machinery and that is or may be used to transport persons or property, among other things.

The provisions legalizing medical cannabis and the employment-related provisions of the law take effect on January 1, 2025. Kentucky employers should review the law and their policies to determine whether any policy revisions are necessary.

It’s been two years since the Marijuana Regulation and Taxation Act legalized marijuana in New York State on March 31, 2021 and prohibited employers from drug testing for marijuana (for tests that are not federally-mandated).  Because many employers still are confused about what New York law requires, here is a recap:

All Off-Duty Use of Marijuana Is Protected; Drug Testing For Marijuana Is Prohibited

New York’s Lawful Activities Law (Section 201-d of the New York Labor Law) provides 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.  As a practical matter, this makes it impossible for an employer to conduct marijuana drug testing because drug tests cannot detect current marijuana impairment.  Although the New York Department of Labor issued guidance in October 2021 stating that employers may test for marijuana when there are “articulable symptoms of impairment,” the guidance went on to explain that employers may not take adverse employment actions based on a positive marijuana drug test result.  As a result, there is no point in conducting marijuana drug testing even when there is reasonable suspicion.

The marijuana drug testing prohibitions in New York do not apply to drug testing that is mandated by federal law such as the regulations of the U.S. Department of Transportation, or drug testing that is required by a federal contract.  Federal contractors should take note that the federal Drug-Free Workplace Act does not require any drug testing so that law alone is not sufficient to justify drug testing for marijuana in New York.

Employers May Prohibit On-Duty Use of Marijuana as Well as Impairment at Work

Employers still may prohibit the on-duty use and possession of marijuana as well as impairment at work.  It is important to revise drug and alcohol policies to make it clear that marijuana may not be used at any time during work hours, even meal breaks and rest breaks, and may not be used on Company premises (e.g., the parking lot at lunch time).

Employers also do not have to tolerate marijuana impairment during work time but it is much harder to address now that marijuana drug testing no longer is permitted.  Employers may conduct reasonable suspicion testing (for alcohol and drugs other than marijuana) but if the test is negative, the employer should discipline based on the observed impaired behaviors, if appropriate.

The Department of Labor guidance states that the smell of marijuana alone is not sufficient to indicate current impairment.  As a result, employers must be careful not to discipline based on smell alone.  Sending employees home to change their clothing may be appropriate for patient-facing and customer-facing positions.

Aren’t There Exceptions For Safety-Sensitive Jobs?

New York law makes no exceptions for safety-sensitive jobs or industries.  Several states, such as Connecticut, have exceptions in their recreational marijuana laws to allow employers in dangerous industries to drug test safety-sensitive employees for marijuana (e.g., police officers, firefighters, health care workers, construction workers, drivers, manufacturing plant employees, etc.)  New York State’s law contains no such exceptions. Employers should review their drug and alcohol policies carefully to ensure that they are complying with New York State law.

A Pennsylvania Court held that an employer violated the state Workers’ Compensation Act (WCA) by refusing to reimburse an employee for out-of-pocket medical marijuana expenses related to a workplace injury.  Fegley v. Firestone Tire & Rubber (Workers’ Comp. Appeal Bd.), 2023 Pa. Commw. LEXIS 26 (Commw. Ct. Mar. 17, 2023). 

Claimant was injured during his employment and received medical treatment based on those injuries.  He was prescribed narcotics for pain relief for 30 years.  His doctor later recommended that he use medical marijuana to treat his pain rather than take narcotics.  A Utilization Review determined the Claimant’s medical marijuana treatment was reasonable and necessary.  Still, the Workers’ Compensation Judge denied Claimant’s petition to be reimbursed for his medical marijuana treatment.  Claimant appealed to the Workers’ Compensation Board and then to a state court.

The court drew the distinction between “coverage” and “reimbursement” for medical marijuana expenses.  Although the state Medical Marijuana Act (MMA) states that insurance carriers are not required to provide “coverage” for medical marijuana, “coverage” is not the same as “reimbursement” for medical expenses that are reasonable and necessary under the WCA.  The court also noted that the MMA prohibits medical marijuana patients from being denied any rights or privileges because of their lawful use of medical marijuana.  For those reasons, the employer (or its insurance carrier) would be required to reimburse Claimant for his use of medical marijuana to treat a work-related injury. 

The court also reviewed whether the reimbursement of medical marijuana expenses would cause an insurance carrier to violate federal law.  The court found that when insurance carriers reimburse claimants for out-of-pocket costs for the legal use of medical marijuana they do not violate the federal Controlled Substances Act because the carriers are not manufacturing, distributing, or dispensing a controlled substance.  The employer is not prescribing marijuana but reimbursing the claimant for his lawful use of it.

(Darling Gutierrez contributed significantly to this post.)

A North Carolina federal court dismissed a former employee’s legal claims related to her use of CBD outside of work after she tested positive for marijuana and was fired by her employer.  Anderson v. Diamondback Inv. Grp., LLC, No. 1:21CV778, 2023 U.S. Dist. LEXIS 42239 (M.D.N.C. Mar. 14, 2023).    

The employer had a drug testing policy which required employees who received an offer of employment to undergo drug and alcohol testing.  At the beginning of her employment, the employee tested positive for marijuana and disclosed that she had a history of using CBD.  She was permitted to take a second drug test and tested positive for marijuana again.  Her employment then was terminated.  The employee asserted claims under the Americans with Disabilities Act (“ADA”) for wrongful discharge, failure to accommodate, and disability discrimination related to her alleged medical use of CBD.  She also alleged discrimination based on the use of lawful products during nonworking hours in violation of North Carolina’s lawful products law.

The employee claimed she took CBD products for medical reasons but she did not have a prescription or medical authorization for CBD use from a health care provider.  Rather, she provided a letter from a nurse stating that she used CBD for anxiety and muscle spasms.  The court therefore ruled that she failed to prove that she had a disability under the ADA.  Moreover, even if the employee could prove that she had a disability, she failed to prove she was wrongfully discharged.  The evidence did not show that the employee provided the employer with notice of any alleged disability—the employee’s verbal statements that she used CBD to treat her anxiety were not enough to show she had a disability. 

The court rejected the failure to accommodate claim for similar reasons, i.e., the employee did not prove that she was disabled or that she had conveyed any request for an accommodation to the employer.  

Lastly, the employee’s claim under North Carolina’s lawful products law also failed.  Although an employer cannot discriminate against an employee for use of lawful products during nonworking hours, the statute provides an exception by which it is not unlawful to restrict employees’ use of lawful products during nonworking hours if the restriction “relates to a bona fide occupational requirement and is reasonably related to the employment activities.” N.C. Gen. Stat. § 95-28.2(c)(1).  Here, the court determined the employer had drug testing requirements that were reasonably related to promoting workplace safety and productivity.  The court found no evidence to suggest the employer’s drug testing policy was enacted for an unlawful reason or purpose. 

(Darling Gutierrez contributed significantly to this post.)

Beginning January 6, 2023, motor carrier employers subject to the regulations of the Federal Motor Carrier Safety Administration (FMCSA) may conduct part of the safety performance history investigation that is required for all driver-applicants in the FMCSA Clearinghouse.  Specifically, employers are required by 49 CFR § 391.23(e)(1) – (3) to obtain information about a driver-applicant’s drug and alcohol violations that occurred in the last three years.   Previously, employers were required to contact directly all U.S. Department of Transportation (DOT)-regulated employers that employed the driver-applicant in the past three years to gather that information.  Now that the FMCSA Clearinghouse has been in existence for three years as of January 6, 2023, employers may satisfy this requirement (as to prior FMCSA-regulated employers) by conducting searches in the FMCSA Clearinghouse on and after that date. 

Employers should take note of the following important issues, however:

  • the Clearinghouse contains only information reported by FMCSA-regulated employers.  So if an applicant previously worked for an employer that is regulated by another DOT agency, such as the Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration, etc., the employer still will need to contact each of those employers directly to obtain the required information.
  • In addition, employers should be aware that they still will need to contact directly an applicant’s previous FMCSA-regulated employers for the past three years to obtain the accident history information required by 49 CFR § 391.23(d).

Motor carrier employers also are reminded to conduct the annual queries in the FMCSA Clearinghouse for each CDL driver they employ.  Employers can log in to the Clearinghouse to see whether their annual queries are due.

Voters in Maryland and Missouri approved laws to legalize recreational marijuana on Election Day 2022.  Recreational marijuana ballot initiatives did not pass in Arkansas, North Dakota and South Dakota.

Maryland

Maryland voters approved a state constitutional amendment that will allow the use of cannabis by anyone over the age of 21 on or after July 1, 2023, subject to the General Assembly passing legislation concerning the regulation, distribution, possession and taxation of marijuana.

Missouri

Missouri voters also approved an amendment to the state constitution.  The amendment addresses both medical marijuana and recreational marijuana. 

The medical marijuana law will permit nurse practitioners to recommend medical marijuana use to their patients in addition to physicians.  It also will permit the use of “marijuana-infused products,” i.e., products that are infused, dipped, sprayed, coated or mixed with marijuana or marijuana extracts.  Those products may be vaporized or smoked, or may consist of edible products, ingestible products, topical products, suppositories, and “infused pre-rolls” (a type of consumable or smokable product).  Medical marijuana cards will be valid for three years.  While the medical marijuana law does not permit operation of a motor vehicle while under the influence of marijuana, the law is now revised to say that the arrest or conviction of a medical marijuana user will require evidence that the user was in actual physical control of the motor vehicle and may not rely solely on the presence of THC or THC metabolites in the person’s system.

The medical marijuana law still prohibits legal claims against employers based on an employer’s prohibition of being under the influence of marijuana while at work.  However, new provisions state that employers may not discriminate against medical marijuana users unless:  failure to do so would result in the loss of a monetary or licensing-related benefits under federal law, or unless the person was under the influence of marijuana on the employer’s premises or during work hours. This discrimination prohibition includes when an employee has tested positive for marijuana, unless the employer can show that the employee was “under the influence” at work, which is not defined.

The constitutional amendment also permits the recreational use of marijuana by adults age 21 and older.  Employers are not required to permit or accommodate the use of marijuana at work or on the employer’s property.  Employers are permitted to take adverse employment actions if a person is working while under the influence of marijuana. It is not clear whether this includes a positive drug test result for marijuana.

Finally, the new law will allow individuals who are serving prison sentences for certain crimes including possession of up to three pounds of marijuana to petition the sentencing court to vacate the sentence, order immediate release and expunge the government’s records.  There are additional provisions addressing expungement of criminal records for those who previously served prison sentences related to certain marijuana-related crimes.

The Missouri constitutional amendment will take effect thirty days after the election.

Employers in Maryland and Missouri should review their drug and alcohol policies to ensure compliance with these new laws.

Puerto Rico’s disability discrimination statute (Law 44-1985), the local counterpart of the Americans with Disabilities Act (ADA), has been amended to extend coverage to registered and authorized medical cannabis patients. The amendment (Law 90-2022) went into effect on October 14, 2022, upon Governor Pedro Pierluisi’s signing.

Prior to the amendment, Law 44-1985’s definition of a “qualified individual with a disability” specifically excluded all active users of illegal substances, as defined by federal law. Since marijuana is illegal under federal law, medical cannabis patients were not protected under the statute.

This exclusion appeared to conflict with Puerto Rico’s Law 15-2021, which created a protected category for registered and authorized patients. Law 15-2021 provides that an employer cannot discriminate against registered and authorized patients of medical cannabis in the recruitment, hiring, designation, or termination process or when imposing disciplinary actions. For more on Law 15-2021, see our article, Registered and Authorized Medical Cannabis Patients in Puerto Rico Gain Employment Protections.

With the new amendment, the apparent conflict has been reconciled.

For employees who comply with the requirements to be an authorized medical cannabis patient, employers will have to go through an interactive process with the employee to determine if the use may be accommodated.

Importantly, at this time, the ADA does not protect cannabis patients since it is an illegal substance under federal law. For employees in Puerto Rico, however, the more beneficial protections apply.

Employers should revise their practices and policies to comply with the new amendment.

Governor Gavin Newsome signed into law September 19, 2022 several measures relating to marijuana, including one that prohibits employment discrimination based on off-duty use of marijuana.  The law takes effect on January 1, 2024.

The law will prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment, if the discrimination is based on:

  • The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
  • An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

The law further notes that:

Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.  After THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite.  These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks. . . . While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.

As science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.  These alternative tests include impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.

The law does not further define “nonpsychoactive cannabis metabolites” and it is unclear what “alternative tests” are being referred to as “tests that do not rely on the presence of nonpsychoactive cannabis metabolites.”  While drug tests are being developed to detect recent use of cannabis, at the present time, such tests are not available.

The law does not apply to employees in the building and construction trades.  It also does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or equivalent regulations applicable to other agencies.  The law also does not preempt state or federal laws requiring drug testing of applicants and employees, including law and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Employers should review their drug testing policies to ensure that their practices will comply with the new law by the time it takes effect