As Judge Richard A. Licht (citing a slightly more well-known source) said in a 2017 court opinion, “I’ll get high with a little help from my friends.” Four years later, employers may wonder which of their employees are high up want and what you can do about it.
States have been busy when it comes to marijuana laws. Prior to the mid-2010s, employers were not concerned about state marijuana laws because of the illegal status of marijuana under federal law. Those days are over, however, and marijuana legalization laws continue to affect how employers can run their jobs.
In 2020, two states (Mississippi and South Dakota) approved electoral initiatives to legalize medical marijuana and four states (Arizona, Montana, New Jersey, U.S.) even though lawmakers were unable to hold typical legislative sessions due to the COVID-19 pandemic perform. and South Dakota) legalized recreational marijuana. As early as 2021, New Mexico, New York, and Virginia passed laws to legalize recreational marijuana, and other state lawmakers are still considering laws to legalize medical marijuana or recreational marijuana, or amend existing laws to create occupational health and safety or otherwise cover it to expand existing laws. These include Alabama, California, Connecticut, District of Columbia, Florida, Hawaii, Kansas, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, and Texas.
Even employers in jurisdictions that have not yet legalized marijuana for any purpose should be aware that a change is likely to be imminent. If a state has legalized marijuana but maintains an employer-friendly landscape, that could change too. For many states, marijuana legalization has followed a predictable schedule. First, these states legalize cannabidiol (CBD) and other low-tetrahydrocannabinol (THC) products. Then they legalize medical marijuana, sometimes with employment protection for medical marijuana card holders and sometimes not. They then change the existing medical marijuana laws to improve health and safety. Finally, they legalize recreational marijuana. Perhaps most worrying for employers are new regulations in New Jersey and New York laws that provide recreational marijuana users, directly or indirectly, with employment protection.
As this trend continues, it will be a challenge for employers to stay one step ahead of developments and to comply with state and federal laws. Employers can have employment-related concerns arising from the legalization of marijuana and the possibility of workers working in the workplace while under the influence. These concerns go beyond the nuances of the marijuana laws themselves and include discrimination and housing issues with disabilities, rights and obligations in drug testing, issues of state and state compliance, occupational safety issues, various obligations with respect to state contractors , Employee Compensation Impact, Employee Privacy Protection, and More. The different laws from state to state make it even more difficult for employers to develop policies and procedures that are compliant in every jurisdiction in which they have employees and workplaces. To further complicate matters, the federal and state level discrimination and disability requirements generally apply.
The central theses
Legal claims related to marijuana use have grown dramatically in recent years, and employers who are unaware of their obligations in all states may be vulnerable to a wide variety of claims. Employers may want to consider existing employment protection regarding marijuana use and be ready to adjust their policies and procedures as more jurisdictions adopt safeguards.
© 2021, Ogletree, Deakins, Nash, Smoak and Stewart, PC, all rights reserved.National Law Review, Volume XI, Number 121
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