From recreational and medical marijuana laws to employee protection laws, small businesses all over are struggling to keep up with legislative changes.
State by state, the use of cannabis for medical and recreational use is popping up on ballots, and one by one, marijuana laws are changing. Although still illegal at the Federal level, marijuana use for medical or recreational purposes is now legal in about half of US states. This past November, voters added three more to the list: Missouri, Utah, and Michigan. In Missouri and Utah, medical use is now legal: in Michigan recreational use is allowed.
New State Marijuana Laws
After receiving almost 66% of the vote, the state of Missouri has legalized medical marijuana use. Amendment 2 took effect in early December. It legalized growing, manufacturing, selling and consuming marijuana and marijuana products for medicinal use. Patients and primary caregivers will apply to the state for identification signaling they’re able to receive and prescribe medical marijuana. Patients may grow up to 6 plants in their home; caretakers may grow up to 18.
In Utah, a compromise bill was passed early December to allow for limited use of marijuana for medical purposes only. The state will oversee only 7 cannabis pharmacies that will dispense marijuana and some cannabis gelatins to local health departments. Patients who are approved for use will be able to pick up their supply from these agencies. A limited number of diseases will be approved under the Utah Medical Cannabis Act.
Michigan is the first Midwest state to allow recreational marijuana use. Adults over the age of 21 may grow up to 12 plants in their homes (as long as they are not easily visible from the street) or in locked or secured outdoor locations on their property. The state is allowing “grow for your own use,” but purchasing and sales are still illegal. The state is expected to allow sales and purchases in the coming year when it can put licenses into effect for retailers.
While no state requires employers to allow workers to perform their jobs while impaired by drugs, testing cannot validate the concern.
In these three states and others, employers are confused about their rights and responsibilities when it comes to marijuana laws and use. Are they allowed to prohibit use on or off the clock? Are they allowed to exclude candidates or fire workers who test positive? In the early days of these legislations, there are no solid answers yet. But states and employers are working out the devil in these details.
The jury is still out (literally) on whether employers may need to accommodate workers who use medical cannabis. In New York and Massachusetts, registered medical marijuana users are protected under their statutes and may have to be accommodated. In California, however, no such protection exists. It will likely remain to be seen if Utah, Missouri, and Michigan will protect medical cannabis users.
In Utah, the list of qualifying conditions for the use of medical cannabis includes qualifying conditions under the Americans With Disabilities Act: therefore use of the substance may need to be accommodated, if not for the use itself, for the disability that requires accommodation.
In Missouri, no provision has yet been made to protect the rights of medical cannabis users yet. But it will likely come up soon. In Michigan, since use is allowed for recreational purposes, employers may not need to make an ADA accommodation, but other issues may arise.
Pre-employment drug testing
In many states with marijuana laws that have legalized cannabis, drug testing companies no longer screen for the substance with the hopes of staying on the right side of legislation. For those who haven’t removed the substance from their screening list, many businesses are asking their drug testers not to advise them if a candidate tests positive for cannabis.
Impairment testing and recognition
If an employee appears impaired on the job, business is required to take swift action to prevent injury to themselves or others. For many companies, and under many bargaining agreements, suspected employees are sent to a testing facility to verify whether or not they are under the influence.
In New York and Massachusetts, registered medical marijuana users are protected under their statutes and may have to be accommodated.
The problem for employers in states with legalized marijuana is the inability of the test to validate whether the person being tested used the substance in the past few days (like over the weekend) or on the job. For employers, the difference could be significant. While no state requires employers to allow workers to perform their job while impaired by alcohol or drugs, testing cannot validate the concern.
If you see an employee you believe is drunk on the job and send them for testing, verification is immediate. They are either currently impaired or they are not. For cannabis use, however, testing cannot verify current impairment since the substance can remain in the system for days or weeks.
Businesses who believe an employee is impaired at work must create a specific protocol to immediately remove the employee from harm’s way and try to determine whether or not they are under the influence of cannabis, alcohol, or other substances. Following that, they will need to work within the guidelines of their own tolerance policies to determine whether or not the employee should be disciplined or terminated.
In most states, employers are free to enforce zero-tolerance policies for recreational drug use on the job: while these have yet to be tested in Michigan, Missouri, and Utah, Courts around the country have consistently held that employees who pose a risk to themselves or others because of recreational drug or alcohol use may be terminated.
For medical marijuana use, precedents are divided: some Courts have held the employees require accommodation. As the Utah law infers, users will essentially qualify under the ADA for their medical cannabis use. That may require employers to work with the employee to shifts schedules, find no- or low-risk work or come up with other solutions if an employee is medicating on the job.
In other precedents, employers are allowed to disqualify a worker or candidate based on use, even for medical purposes. In these three new states, as in many other states still testing the legislative and judicial waters, employers will want to tread lightly so they don’t become a test case.
In Utah, Michigan, and Missouri, legislators are likely receiving an onslaught of questions from employers about their rights and responsibilities. A best practice is to stay in the loop: keep current on clarifications and updates lawmakers and the courts make in your state regarding marijuana laws.