New laws and the 2021 cannabis effect on employers
May 10, 2021
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In the first four months of 2021, numerous states, including Virginia, New Mexico, New York, and New Jersey, passed laws to remove restrictions on recreational and medicinal cannabis. Employers in these states raise questions about whether the new laws will affect their policies and views on cannabis use.
The following is a brief summary of the new bills in each state.
- Virginia passed law in July 2021 that removes criminal penalties for simple marijuana possession and provides a process that automatically overturns convictions for certain marijuana-related crimes. The law also creates a Virginia Cannabis Control Authority that regulates the cultivation, manufacture, and sale of retail marijuana.
- New Mexico passed law in June 2021 legalizing the use and sale of recreational marijuana. The law allows people over 21 to have up to 2 ounces of marijuana, and individuals can have six plants at home, or up to 12 per household. The act also creates a cannabis control division of the New Mexico Regulation & Licensing Department to regulate and license the distribution of marijuana.
- New York passed a law legalizing the use of marijuana for adults aged 21 and over, effective March 21, 2021, and established a framework for the sale of marijuana from 2022. The act created two state agencies to regulate state marijuana programs: the Cannabis Control Board and the Office of Cannabis Management.
- New Jersey passed law that went into effect February 22, 2021 that legalized the sale, use, and possession of recreational marijuana for anyone age 21 and older. The law also created the Cannabis Regulatory Commission, which, in addition to regulating the cultivation, production, manufacture, transport, and supply of marijuana, requires certification required for employers to conduct drug tests and identify impairments in workers.
Impact on employers
As state legislation extends individual rights, those rights will inevitably create tension with some employers’ desire to get drug-free jobs. Frequently asked questions from employers include: Can we continue to test applicants and employees for marijuana? May employees be impaired at work? Do we need to allow employees to possess marijuana at work? Can I terminate an employee who uses cannabis off duty?
States offer different approaches to some of these questions.
- The new Virginia Recreational Cannabis Act does not provide any information on the impact on the employer-employee relationship. Accordingly, the law will not change the generally accepted principles of how employers can control their workplaces until the Commonwealth issues additional guidance on regulation. For example, the law doesn’t prohibit employers from testing applicants for marijuana, and employers can still prohibit possession and impairment in the workplace. No precedent specifically states whether an employer should consider a person’s use of medical marijuana in Virginia.
- However, a second law passed by Virginia in 2021 prohibits employers from discriminating against workers who use cannabis oil, provided workers have a valid written certificate issued by a practitioner treating symptoms of certain medical conditions. However, employers can still prohibit nuisance caused by cannabis oil and prohibit possession during working hours. Neither does the law require employers to do anything that would violate federal law, lose a federal contract, lose federal funding, or require defense employers of the U.S. Cybersecurity and Infrastructure Security Agency to hire someone to tests positive for tetrahydrocannabinol (THC). As previously reported, Virginia also prohibits employers from requiring applicants to disclose information about arrests, criminal charges, or convictions for simple possession of marijuana.
- New Mexico law allows employers (unless otherwise agreed) to implement a written zero-tolerance drug policy that prohibits workers from testing positive for THC. It is important, however, that the law does not restrict the rights granted to medical marijuana users under state law. As a result, with limited exemptions, an employer is still prohibited from taking negative action against an applicant or employee if the individual has a prescription for medical marijuana and / or is using medical marijuana.
- New York law protects workers marijuana use outside of work hours, outside of the employer’s premises, and without the use of employer’s equipment or other property under the same law protecting workers’ legal recreational activities outside of work. In particular, the law does not prevent an employer from taking action if: (a) the employer’s actions were required by state or federal law; (b) the worker is adversely affected by the use of marijuana while at work, which requires the worker to have “specific, articulate symptoms” that affect the worker’s performance or affect the employer’s obligation to provide a safe and healthy workplace; or (c) the employer’s actions would violate federal law or result in the loss of the federal contract or federal funding.
- New Jersey law provides full protection for all employees who use medical marijuana. Employers must not take adverse action against an employee who uses marijuana or because of the presence of marijuana in the employee’s system. In addition, the law prescribes the circumstances in which an employer can subject an employee to a drug test, but requires, among other things, that the test includes “a physical assessment to determine the level of impairment of an employee” certified by one certified by the Cannabis Regulatory Commission Person is carried out individually.
- None of the new laws require employers to allow workers to be impaired at work or to possess or use cannabis in the workplace or while at work.
Interaction with other laws
In addition to the problems employers face in controlling their jobs, employers need to be aware of how new cannabis laws interact with other state and federal laws.
- Reasonable Precautions: In certain circumstances and in some jurisdictions, an employer must grant an employee’s request for reasonable accommodation if the employee has a disability under state law. This is a state-dependent problem and states are divided on the basis of the problem. States that allow employers to fire workers for marijuana use regardless of disability include California, Colorado, Florida, Georgia, Mississippi, Montana, Ohio, Oregon, and Washington. States that have private lawsuits for non-conformance to treat a disability (or otherwise require medical marijuana placement) include Arizona, Arkansas, Connecticut, Delaware, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New Mexico York, Oklahoma, Pennsylvania, Rhode Island, and West Virginia. State laws and jurisdiction are subject to change. Employers should therefore consult a lawyer when faced with a request for shelter to use cannabis.
- Federal Drug Free Workplace Laws: The Drug-Free Workplace Act (DFWA) requires certain federal entrepreneurs and federal grant recipients to maintain drug-free workplaces. This requires a workplace where employees are prohibited from manufacturing, distributing, owning, or using controlled substances. Courts have ruled that DFWA does not prohibit federal companies from employing anyone who uses illegal drugs outside of the workplace. Accordingly, federal contractors and scholarship holders can be asked to comply with the state law and this federal law at the same time.
- Commercial drivers: Employers administered by the U.S. Department of Transportation, including companies that employ individuals who drive under a commercial driver’s license, must adhere to the DOT’s stringent regulations on drug testing and possession. The DOT has made it clear several times that state legalization of marijuana has not changed the DOT’s drug-related regulations. Accordingly, the DOT expects employers to continue to comply with federal law regarding DOT-regulated workers.
- Collective agreements: Collective bargaining employers should remember that changing drug testing or drug use policy may be prohibited without negotiating with the negotiating body.
Employers should regularly review their drug use and drug testing policies to ensure they are compliant with ever-changing state and local laws.
The content of this article is intended to provide general guidance on the subject. A professional should be consulted about your particular circumstances.
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