Here are some laws that recently went into effect regarding off-duty use of marijuana and pre-employment cannabis testing.
As an increasing number of cities and states approve marijuana use, employers, and legislators are grappling with issues such as pre-employment drug testing and how to handle the use of weed outside the workplace.
In laws that recently went into effect, Montana employers are not allowed to discriminate against a worker for off-duty use of marijuana while the cities of Philadelphia and Baltimore have eliminated pre-employment cannabis testing. One Baltimore city executive even described drug testing as a “disincentive” to applying for a job with Charm City.
Marijuana use remains illegal at the federal level.
Montana employers cannot discriminate against employees for the off-duty use of marijuana as of January 1, 2022. Big Sky Country citizens voted to legalize recreational marijuana in November 2020. However, that ballot initiative focused on employer restrictions over the use of weed in workplace.
Montana employers cannot discriminate against employees for the off-duty use of marijuana as of January 1, 2022.
In May 2021, Montana Governor Greg Gianforte signed the Montana Regulation and Taxation Act. The update to Montana’s existing marijuana legislation forbids discrimination for the use of a lawful product during non-working hours with certain exceptions. Montana state law now defines marijuana as a “lawful product.”
Employers may not refuse to hire a worker because the individual uses weed during nonworking hours. In addition, employers may not discriminate in the compensation or promotion of an employee because the worker uses marijuana.
However, the prohibitions against discrimination for use of marijuana do not apply if:
- Marijuana use affects an individual’s ability to perform job-related employment responsibilities or the safety of other employees;
- The use of weed conflicts with a bona fide occupational qualification that is reasonably related to the individual’s employment;
- An individual has a professional services contract with an employer and the “unique nature” of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products;
- The employer is a nonprofit organization that, as one of its primary purposes or objectives, discourages the use of marijuana by the public; or
- The employer acts based on the belief that its actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.
Additional information to know
Employers do not have to accommodate recreational marijuana use in the workplace or on the employer’s property.
Montana’s marijuana laws do not create a cause of action against employers for wrongful discharge based on marijuana consumption.
“For employers with drug testing programs, it may be difficult to take adverse employment actions for positive marijuana test results, particularly for pre-employment and random drug tests,” Catherine A. Cano, an attorney with Jackson Lewis P.C., said.
In addition, “Montana has a restrictive drug testing statute that limits the categories of employees who can be subjected to employer drug testing in the first place,” Cano continued.
Most Philadelphia employers won’t be able to test new hires for marijuana use under legislation that went into effect on January 1, 2022.
Most Philadelphia employers won’t be able to test new hires for marijuana use under legislation that went into effect on January 1, 2022. The amendment does not apply to law enforcement positions, jobs requiring a commercial driver’s license, and caregiver positions.
City Councilmember Derek Green told The Philadelphia Inquirer that he introduced the bill after learning that some people with autism spectrum disorder are prescribed marijuana for learning difficulties and then find it difficult to get work because of the marijuana use.
City officials in Baltimore in December 2021 suspended pre-employment drug screening for public employees in positions that don’t involve safety.
Baltimore mayor Brandon M. Scott said the move fulfills a campaign promise. “Outdated and costly pre-employment drug and alcohol screenings only serve to block qualified and passionate residents from obtaining employment with the city,” Scott said.
“This policy disproportionately harmed the prospects of talented Black and Brown job candidates,” Scott continued.
According to reporting in The Baltimore Sun, pre-employment drug testing will be conducted for “positions of trust,” which includes jobs responsible for children, the safety of others, money or sensitive materials. Senior city staff, such as department and agency heads, are also subject to pre-employment testing.
City Human Resources Director Quinton Herbert told the newspaper that lifting the drug testing policy will make city positions more attractive to candidates.
Workplace cannabis policies evolving
The legality of marijuana is rapidly changing. Election Day 2020 alone saw 4 states approve the use, possession and cultivation of small amounts of cannabis for those over 21.
With legal use on the books, some states, such as Montana and Nevada, have passed legislation limiting an employer’s ability to either pre-screen applicants for past marijuana use or refuse to hire them.
Some cities have also acted on the matter. In addition to Baltimore and Philadelphia, New York, Atlanta and Kansas City have also taken steps to eliminate pre-employment drug screening requirements for marijuana and other substances for certain workers.
In revising or developing policies on drug use, employers must familiarize themselves with the latest developments in municipal, state and federal laws.