Marijuana Buds & Joints

Category: Recreational/Medical Marijuana

Right-to-Weed States: Assessing Impairment and Managing Employee Conduct in the Workplace

On May 9, 2023, the Washington state governor signed a law that will make it unlawful for employers to discriminate against hiring a person based on their marijuana usage, making Washington the latest state to become a right-to-weed state. With medical and recreational marijuana legalization spreading, a growing number of states are further implementing protections for employees who lawfully use marijuana or cannabis.

These developments continue to create challenges for employers seeking to enforce drug-testing and drug-free workplace policies. Moreover, even in right-to-weed states that have enacted employment protections for lawful and off-duty marijuana use, employers are not required to permit employees to use marijuana in the workplace or to work while impaired by or under the influence of marijuana or other drugs. Here are some key points on the ways in which employers, even in right-to-weed states, can regulate marijuana usage and maintain drug-free workplaces.

Quick Hits

  • Employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana.
  • Employers may be required to reasonably accommodate medical marijuana users, but that does not mean employers must permit users to be impaired while working.
  • Supervisors and managers can be trained to recognize the signs of marijuana impairment.

Impairment Is Still Prohibited

While the Americans with Disabilities Act and most state counterpart laws do not require employers to accommodate illegal drug use, employers may have to engage in the interactive process to determine whether a reasonable accommodation can be made for an employee’s off-duty marijuana use if the employee is disabled. Still, employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana, just like with alcohol.

Medical Marijuana Cards Are Not Prescriptions

Generally, employers may not discriminate against individuals with a medical marijuana identification card because they: (i) possess the card, (ii) use medical marijuana off the employer’s premises during nonworking hours, or (iii) test positive for marijuana, unless there is evidence that the employees used or possessed marijuana while working or that the employees’ lawful off-duty use affects the employees’ ability to perform their jobs, affects the safety of others on the job, or conflicts with an occupational qualification reasonably related to the job. In other words, employees—including authorized medical marijuana users—may be prohibited (lawfully) from working while “under the influence” of marijuana by some employers.

Medical marijuana cards do not give employees permission to use marijuana on the job. In most states, medical marijuana authorization cards only entitle holders to purchase marijuana to treat a condition. They are not prescriptions that mandate dosages or frequency as prescriptions do with other drugs. Thus, to understand how to manage situations in which employees hold medical marijuana cards, employers may need to engage in the interactive process with these employees to determine whether they can reasonably accommodate the marijuana usage. But, again, reasonably accommodate does not mean employers must permit medical marijuana users to be “under the influence” while working.

Training Employees to Spot Impairment Is Key

Unlike alcohol, there is no standard test for marijuana that can prove current impairment. Marijuana users are typically “under the influence” between two and ten hours after usage, but some studies have shown impairment can last for twenty-four or more hours. But, even after the user is no longer under the influence, they can test positive for marijuana for weeks or longer. That said, employees may exhibit visual signs of impairment associated with being under the influence of marijuana—which differ from the signs of alcohol intoxication. Supervisors and managers can be trained to recognize when an employee may be under the influence of marijuana. Some states allow employers to designate a workplace impairment recognition expert (WIRE) who obtains specialized training to identify when an individual is impaired by marijuana.

It may be more difficult to visually observe when employees working remotely are impaired, but if there is reason to believe that an employee was impaired on the job because co-workers or customers who interacted with the employee reported it, that report itself can be evidence to show that the employee was impaired.

Next Steps

Employers may want to audit existing policies and procedures to confirm compliance with the changing landscape around marijuana usage. Employers may further want to consider training supervisors and managers to recognize the signs that employees are under the influence of marijuana, alcohol, or other drugs.

This article is based on a May 2023 presentation by Ogletree Deakins shareholders Aimee B. Parsons and Burton D. Garland, Jr. at the firm’s 2023 National Workplace Strategies Seminar in San Diego.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments in marijuana laws and will provide updates on the Drug Testing and Leaves of Absence blogs as additional information becomes available.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Medical Marijuana in Your Suitcase? How One Basketball Player’s Conviction Raises Concerns for Employers

On October 25, 2022, U.S. professional basketball player Brittney Griner lost her bid in a Russian appeals court to overturn a nine-year sentence for attempting to smuggle illegal drugs into Russia. According to reports, Griner, a Women’s National Basketball Association star and two-time Olympic gold medalist, was arrested at a Russian airport in February 2022 while attempting to enter the country to play professional basketball with vaporizer cartridges containing less than one gram of hashish oil, a product derived from marijuana. Griner reportedly has a prescription for medical marijuana in Arizona, but marijuana, including medical marijuana, remains illegal in Russia.

The U.S. Department of State has classified Griner as “wrongfully detained,” a designation that means the United States will act more aggressively to secure her release.

Griner’s situation may be special given the political situation between the countries involved. At the same time, it may serve as a reminder to employers of the risks to employees traveling for work with marijuana given the drug’s varying legal status from country to country and even state to state within the United States.

Varying Legal Status of Marijuana

Currently, recreational marijuana, or cannabis, is legal in twenty-one U.S. states plus the District of Columbia, while medical marijuana is legal in many more. The drug is illegal to import, manufacture, distribute, and possess under the Controlled Substances Act as a Schedule I controlled substance—a designation for drugs considered to have the high potential for abuse and no accepted medical use.

Around the globe, there are similar differences in the status of marijuana. While most countries continue to ban marijuana, some have limited enforcement, and several countries, such as Canada, have legalized recreational use on a national level. Many others, mostly those in Europe and South America, have legalized medical marijuana. On the other hand, some countries have strict drug laws and impose harsh penalties for marijuana possession.

The World Anti-Doping Agency (WADA) also treats marijuana as a prohibited substance for athletes competing in international sports as marijuana and cannabinoids are on the prohibited list under the World Anti-Doping Code, which seeks to harmonize international anti-doping efforts around the world. However, in 2019, WADA exempted cannabidiol (CBD), a chemical derived from marijuana that differs from the psychoactive compound tetrahydrocannabinol (THC).

Immigration Consequences for Non-U.S. Citizens

While recreational or medical use of marijuana is legal in many states, marijuana remains a controlled substance under federal law. Therefore, marijuana-related activity, such as lawful employment in the cannabis industry, possession, sale, purchase, or formally admitting to marijuana use can lead to immigration consequences for noncitizens, even if the activity is carried out in a state where marijuana is legal. Additionally, the mere admission of conduct related to marijuana can also result in failing to establish the good moral character required to obtain U.S. citizenship through naturalization. Non-U.S. citizens include lawful permanent residents (also referred to as “green card holders”), visitors, students, work visa holders, and dependents of work visa holders.

Flying in the United States

When flying in the United States, the Transportation Security Administration (TSA) does generally allow the transport of personal medical marijuana in certain situations. The TSA does warn that marijuana and certain cannabis-infused products, including some CBD oil, remain illegal under federal law. The 2018 federal farm bill made an exception “for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA.”

The TSA states that it does not specifically search for marijuana or other illegal drugs, but that if any illegal substances are found during screening, the agency “will refer the matter to a law enforcement officer.” Despite the farm bill, there have been reports of travelers in recent years being arrested and detained in some U.S. states where marijuana is illegal after marijuana or marijuana products were discovered in their luggage.

International Travelers

Traveling internationally can pose additional risks. According to U.S. law, it is illegal to import any amount of marijuana or drug paraphernalia into the United States. In April 2021, U.S. Customs and Border Protection issued a reminder to the public that those caught with marijuana entering the United States face several consequences, including federal civil penalties of up to $1,000.

It is further illegal to transport marijuana across many international borders, even if marijuana is legal in the destination country. For instance, the government of Canada, which legalized recreational marijuana in 2018, warns travelers that it is illegal to transport marijuana or cannabis products, including edibles, cannabis extracts, and topical ointments, across the border into Canada, no matter how much travelers are carrying or whether they are authorized to use medical marijuana in any form.

Further, not only have many countries not followed the legalization trend, they impose strict penalties for violations. Singapore, for example, a popular location for many U.S. multinationals, punishes possession or consumption of cannabis with up to ten years of imprisonment or $20,000 or both. And those who illegally traffic, import, or export cannabis may face the death penalty.

The U.S. Department of State warns travelers that they are subject to the local laws and regulations of a country they are visiting and that those laws and potential penalties might differ from those in the United States. Travelers who are arrested or detained abroad may have to be connected with the U.S. Embassy in that country, which, depending on the country, may be able to provide various services, such as providing a list of local attorneys who can represent the traveler.

Key Takeaways

Despite the growing legalization of medical and recreational marijuana, the drug remains illegal under U.S. federal law, in many states, and in most countries around the globe. Employers with employees who regularly travel for work, especially multinational employers with employees who must travel internationally frequently, may want to consider employment policies to ban these drugs during travel. They may also want to consider warnings to employees about the risks of travel with marijuana products even if employees are licensed medical marijuana users.

Further, employers may want to evaluate broader potential risks before asking or requiring employees to travel to certain countries currently undergoing conflict or that have tense relations with the United States.

Ogletree Deakins’ Cross-Border Practice Group and Immigration Practice Group will continue to monitor and report on developments with travel issues will post updates on the firm’s Cross-Border and Immigration blogs. Important information for employers is also available via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Maryland and Missouri Pass Recreational Marijuana, Missouri Adds Medical Marijuana Cardholder Employment Protections

On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders. At the same time, voters in three other states—Arkansas, North Dakota, and South Dakota—rejected similar ballot measures.


Marijuana and Psychedelic Mushrooms State Laws

Maryland Question 4

Voters in Maryland overwhelmingly approved Question 4 with nearly 66 percent of the vote to amend the state constitution to allow for recreational marijuana use by those 21 years of age or older.

Accompanying legislation passed by the state legislature, House Bill (HB) 837, will go into effect due to the voter approval of the referendum. HB 837 specifically allows the possession and personal use of up to 1.5 ounces of marijuana or 12 grams of concentrated marijuana beginning on July 1, 2023. The bill further extends decriminalization of marijuana until that date and would provide for the expungement of criminal offenses made legal by the act. However, the bill would prohibit the smoking of marijuana in places where smoking of tobacco products is prohibited, including indoor places of employment.

Impact on Employer

Beyond generally legalizing marijuana for recreational purposes, HB 837 does little to address employer rights to prohibit employees from using recreational marijuana. As such, Maryland employers may still be able to enforce workplace drug policies and testing programs even if the referendum passes. However, employers in Maryland should remain mindful of potential disability discrimination and accommodation considerations when handling employment issues involving medical marijuana cardholders.

Missouri Amendment 3

Voters in Missouri passed Amendment 3 with 53 percent voting in favor and 47 percent voting against, according to the Missouri Secretary of State. The measure revises and amends the state’s existing medical marijuana provisions, as well as permits those twenty-one years old and older to legally possess, purchase, consume, and cultivate marijuana for recreational purposes. However, most importantly, the measure amends the state’s medical marijuana provisions. It is set to take effect on December 8, 2022.

Beyond legalizing marijuana for nonmedical purposes, the measure provides employment protections for medical marijuana users. Specifically, Missouri’s medical marijuana law will soon prohibit employers from discriminating against an employee because he or she: (1) possesses a medical marijuana identification card; (2) lawfully uses marijuana off the employer’s premises during nonworking hours; or (3) tests positive for marijuana unless the employee was using, possessing, or under the influence of marijuana while at work.

Impact on Employers

Amendment 3 does not prevent employers from generally enforcing drug and alcohol-free workplace policies or from testing for marijuana. Moreover, it does not permit employees to be under the influence of marijuana at work, and it does not provide employment protections for recreational marijuana users. Nevertheless, the amendment is relevant to employers because of the changes it makes to Missouri’s existing medical marijuana law. The added employment protections for medical marijuana cardholders will create new challenges for Missouri employers in dealing with workplace marijuana issues—the possibility of legal claims arising directly from the medical marijuana law itself.

Key Takeaways

The legalization of marijuana for recreational personal use continues to slowly spread across the United States though the recent elections shows that the population in certain areas of the country remain hesitant to legalize marijuana. Broader legalization could create additional challenges for employers in seeking to maintain drug-free workplaces. Employers in Maryland and Missouri may want to review their drug use policies in light of the new recreational marijuana legalization measures.

Ogletree Deakins will continue to monitor developments with respect to marijuana legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. In addition, further information on federal, state, and major marijuana laws and guidance on compliance with the same is available via the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes. Important information for employers is also available via the firm’s webinar and podcast programs.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

California Passes Bill Protecting Employees’ Off-Duty Marijuana Use

California employers may soon be barred from discharging employees or refusing to hire individuals based on their off-duty use of marijuana, under a new bill headed to the governor’s desk. On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which would prohibit employers from discriminating against “a person in hiring, termination, or any term or condition of employment” based on “the person’s use of cannabis off the job and away from the workplace.”

AB 2188—which amends the California Fair Employment and Housing Act (FEHA), the state’s employment antidiscrimination law—will further make it an unlawful employment practice to discriminate against an individual based on “an employer-required drug screening test” that detects the presence of “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The bill passed the Senate on August 29, 2022, and a day later, passed a concurrence vote in the Assembly, sending it to California Governor Gavin Newsom for approval. The governor has until September 30, 2022, to sign or veto bills. If approved, the bill would take effect on January 1, 2024.

While recreational use of marijuana, or cannabis, has been legal in the Golden State since 2016 and medical marijuana has been legal since 1996, the bill, if approved by Governor Newsom, will be the first law in the state to specifically provide workplace protections for recreational and medical marijuana users.

However, AB 2188 will still allow employers to restrict marijuana use on the job. The bill would not allow employees “to possess, to be impaired by, or to use, cannabis on the job.” The bill also states that nothing contained in it “affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace” or “any other rights or obligations of an employer specified by federal law or regulation.”

Additionally, the bill includes carve outs for employees in “the building and construction trades” and for applicants or employees for federal jobs requiring clearance from the U.S. Department of Defense.

Business groups opposed AB 2188 over concerns that it will limit or eliminate drug testing for marijuana in the workplace and make it more difficult to discipline for reasonable impairment on the job from marijuana. These concerns are heightened due to questions over the feasibility, costs, and reliability of impairment tests compared to traditional drug screens for metabolites.

California was the first state to legalize medical marijuana with Proposition 215 in 1996, but that law did not provide workplace protections for use. Surprisingly, even with courts around the country becoming more employee-friendly with marijuana issues, California has remained more employer-friendly in its court decisions. In 2008, the Supreme Court of California ruled that a disabled individual who used medical marijuana was not protected under the FEHA, and in 2016, the United States District Court for the Eastern District of California issued a similar ruling.

In 2016, California voters approved Proposition 64 to legalize recreational marijuana. That proposition purported to keep intact the rights of public and private employers to enforce workplace anti-drug policies. Meanwhile, courts in at least two other states, Nevada and Colorado, have found that workplace protections for lawful, off-duty conduct more generally, do not apply to marijuana use because marijuana is still classified as a Schedule I controlled substance under the federal Controlled Substances Act.

Key Takeaways

AB 2188 would make California the latest in a growing list of states, including New York, with legalized marijuana to enact workplace protections for its use outside of work. Still, the bill, if approved by the governor, would permit employers to continue to enforce drug- and alcohol-free workplace polices and continue to test for marijuana impairment so long as the tests are not focused on “nonpsychoactive” chemicals in the body. Nonetheless, the implementation of such tests presents a challenge for employers and creates questions about employers’ ability to enforce workplace policies and discipline employees who are impaired on the job. If ultimately approved by the governor, California employers may want to review and update their workplace drug policies and their drug screening protocols.

Ogletree Deakins will continue to monitor developments with respect to the legislation and will post updates on the California and Drug Testing blogs. In addition, further information on federal, state, and major marijuana laws is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes, and via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Nevada High Court Rules Recreational Marijuana Is Not ‘Lawful Off-Duty Conduct’

In a decision issued on August 11, 2022, the Nevada Supreme Court declined to recognize recreational marijuana use as a “lawful” activity for purposes of the state’s law providing employment protections for “lawful activities” or “lawful off-duty conduct” outside of work.

The court reasoned, in Ceballos v. NP Palace, LLC, that while recreational marijuana use is legal in Nevada, marijuana possession remains illegal under federal law as it is still classified as a Schedule I controlled substance under the federal Controlled Substances Act. For the same reasons, the court ruled that a wrongful termination claim could not be supported on public policy grounds.

Danny Ceballos, a former table games dealer at the Las Vegas Station Hotel & Casino, suffered a minor workplace injury in June 2020. After his injury, Ceballos tested positive for marijuana on a post-accident drug screen. Palace Station later terminated his employment. Ceballos filed a lawsuit against Palace Station alleging his discharge violated Nevada Revised Statutes § 613.333, which is sometimes referred to as Nevada’s “lawful off-duty conduct” law, and for wrongful termination in violation of public policy.

In his lawsuit, Ceballos argued that he was not impaired during his work shift when he was injured and that he had not used marijuana within the 24 hours prior. NRS § 613.333 states that an employer may not discharge an employee “because the employee engages in the lawful use in [Nevada] of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.”

However, in dismissing the lawsuit in favor of Palace Station, the Nevada Supreme Court reasoned that NRS § 613.333 contemplates the use of a product that is “lawful under both state and federal law, not just lawful under Nevada law.” (Emphasis added.) Since marijuana remains illegal under federal law, Ceballos cannot rely on NRS § 613.333 to support a claim arising out of his termination of employment, the court ruled.

To further support its decision, the court relied on a 2015 Colorado Supreme Court case, Coats v. Dish Network, LLC, which similarly determined that recreational marijuana use could not be deemed “lawful” activity even though recreational marijuana use is legal in Colorado, because of marijuana’s status as a Schedule I controlled substance.

The court further ruled that Ceballos could not support a wrongful termination claim for public policy reasons, noting that such “tortious discharge” cases are limited only to cases in which the termination “violates strong and compelling public policy.” The court stated that Ceballos’s case “differ[ed] fundamentally” from those cases. Here, the issue centered on his personal right to use marijuana recreationally, which besides being illegal under federal law, did not concern a “public dimension” such as employer-coerced criminal conduct, workers’ compensation for on-the-job injuries, or public service like jury duty or whistleblowing.

In a possible call-out to the Nevada legislature, the court explained that the interplay between adult recreational marijuana use and employment law authorizes employers to adopt and enforce policies restricting use that affects its workplace. The court stated that had the legislature “meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so.”

Key Takeaways

The Nevada Supreme Court’s holding means that, currently, employers in Nevada are not required to accommodate an employee’s recreational use of marijuana. The case is further notable because it holds, specifically, that Nevada’s “lawful off-duty conduct” statute does not protect employees’ recreational marijuana use, at least for now. However, the holding would be called into question if marijuana is legalized on the federal level, or Nevada’s statutes are revised to specifically protect recreational use, as in New York (e.g., New York Labor Law § 201-d) or to accommodate recreational use.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

California Bill Proposes to Prohibit Employment Discrimination Against Marijuana Users

A bill recently introduced in the California Assembly proposes to prohibit discrimination against employees who use cannabis off the job.

The legislation, Assembly Bill (AB) No. 2188, would amend California’s employment antidiscrimination law, the Fair Employment and Housing Act (FEHA), and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.” AB 2188 would also prevent discrimination against an applicant or employee who fails a drug test detecting “nonpsychoactive cannabis metabolites in their urine, blood, hair, or bodily fluids.”

The bill would not permit an employee “to be impaired by, or to use cannabis on the job” or affect “the rights or obligations of an employer to maintain a drug and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code.” (Hyperlink added.)

AB 2188 includes carveouts for the building and construction trades, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces. Its provisions also exclude occupations that are required by federal or state laws to be tested for controlled substances.

If enacted, AB 2188 would be the first California law providing workplace protection to users of cannabis.

California’s Proposition 215 legalized the medical use of marijuana in 1996. The law did not provide workplace protections for off-duty, off-premises medical marijuana use. In 2008, in Ross v. RagingWire Telecommunications, Inc., the Supreme Court of California determined that a disabled individual who used medical marijuana was not protected under the FEHA.

In 2016, California voters approved Proposition 64, which legalized the recreational use of marijuana. Proposition 64 purported to leave employers’ workplace rights undisturbed. The legislative initiative stated that its purpose and intent, among other objectives, was to “[a]llow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The initiative also provided that nothing in it would be “construed or interpreted to amend, repeal, affect, restrict, or preempt … [t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace.”

The California Chamber of Commerce opposes AB 2188. In an April 23, 2022, letter published on its website, the CalChamber stated its concerns:

AB 2188 … outlaws utilizing metabolite-based testing for marijuana by making any discipline based on a metabolite test a violation under FEHA. We have concerns about the feasibility and cost of the alternative tests pushed by AB 2188—specifically, saliva and impairment-based testing. These tests are relatively new, and we are concerned about their reliability in identifying marijuana use. In addition, we have concerns with the efficacy of saliva-based testing for marijuana consumed in an edible form.

The CalChamber also raised concerns in the letter that AB 2188, if enacted, would limit or eliminate preemployment testing for marijuana and make workplace discipline for reasonable suspicion impairment more difficult and subject to litigation.

AB 2188 is currently under committee review in the California Assembly. The bill will need to pass both houses of the California Legislature before it lands on the governor’s desk. The governor has until September 30, 2022, to sign or veto bills.

Ogletree Deakins will continue to monitor developments with respect to the legislation and will post updates on the California and Drug Testing blogs. Important information for employers is also available via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Mississippi Approves Medical Marijuana: What a Long, Strange Trip It’s Been

Rarely are we able to combine the Grateful Dead and Mississippi in the same sentence, but the band once said, what a long strange trip it’s been.

In November 2020, Mississippi voters overwhelmingly approved Initiative Measure No. 65, a citizen-driven ballot initiative. Initiative Measure No. 65 would have amended the Mississippi Constitution to create a state medical marijuana program. However, on May 14, 2021, the Mississippi Supreme Court overturned Initiative Measure No. 65, ruling that the state election law governing voter ballot initiatives was out-of-date and unworkable.

The Mississippi legislature thereafter began working to pass a medical marijuana bill. On January 26, 2022, the Mississippi legislature approved Senate Bill 2095, the “Mississippi Medical Cannabis Act.” Mississippi Governor Tate Reeves signed the bill into law on February 2, 2022. The act goes into effect immediately.

The act lists twenty medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Mississippi, including cancer, Crohn’s disease, post-traumatic stress disorder, any “chronic, terminal, or debilitating” condition producing chronic pain, and “any other condition” that may be added by the Mississippi Department of Health in the future. The act makes clear that it prohibits “smoking medical [marijuana] in a public place or in a motor vehicle.”

Importantly, unlike many other state medical marijuana legalization laws, the Mississippi act does not contain any express employment protections for medical marijuana cardholders. With respect to employment, the act specifically states that it does not:

  • require an employer, health insurer, or workers’ compensation insurer to pay or reimburse for costs associated with medical marijuana use;
  • require an employer to permit, accommodate, or allow the use of medical marijuana by employees;
  • require an employer to modify any job or working conditions of employees who are medical marijuana cardholders;
  • prohibit employers from refusing to hire applicants who are medical marijuana cardholders, or taking adverse employment action against employees who are medical marijuana cardholders, based either in whole or in part on the individual’s medical marijuana use, and irrespective of impairment;
  • prohibit employers from establishing and enforcing drug testing or drug-free workplace policies;
  • interfere with federal regulations or restrictions governing drug testing, such as U.S. Department of Transportation regulations;
  • provide for an express, legal cause of action for an individual to file a legal claim against an employer “for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment due to the individual’s medical use of medical cannabis”; and
  • impact the workers’ compensation premium discount available to Mississippi employers that establish a drug-free workplace program in accordance with state law.

Key Takeaways

The absence of express employment protection language in the act suggests that Mississippi employers could take adverse employment action against employees with medical marijuana cards with minimal risk of violating the act. However, Mississippi employers may want to remain mindful that even if taking action against employee-cardholders for their medical use of marijuana is lawful under the act, cardholders may pursue disability discrimination and accommodation claims related to their medical use of marijuana. Individuals must have a qualifying medical condition to receive a medical marijuana card, and any of the twenty medical conditions that would make an individual eligible for a card in Mississippi likely would be considered a disability under laws such as the Americans with Disabilities Act (ADA). Courts and administrative agencies around the country have regularly determined that medical marijuana cardholders may assert disability discrimination and accommodation claims under state law and, in some instances, the ADA. Therefore, Mississippi employers should closely monitor this issue going forward.

With marijuana legalization being a new development in Mississippi, court guidance and interpretation of the act and related disability discrimination and accommodation claims will be critical.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.

Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Pennsylvania Court Holds Medical Marijuana Act Allows Employees to Sue for Discrimination

On August 5, 2021, the Superior Court of Pennsylvania held for the first time that Pennsylvania’s Medical Marijuana Act (MMA) allows an employee to sue his or her employer for taking an adverse employment action based on the employee’s status as a certified user of medical marijuana. In Palmiter v. Commonwealth Health Systems, Inc., et al., the superior court affirmed the decision of the Court of Common Pleas of Lackawanna County, allowing the employee’s MMA claim to proceed. In so holding, the superior court found that the MMA as a whole and the statute’s employment provision, 35 P.S. § 10231.2103(b) (Section 2103), indicate that Pennsylvania’s legislature intended to create an implied private right of action for aggrieved employees. Although this decision clarifies employee rights and employer obligations under the MMA, additional key questions still remain.

Background

In 2017, Pamela Palmiter began working as a medical assistant for Medical Associates of NEPA. In December 2018, Palmiter became licensed to use medical marijuana within the Commonwealth of Pennsylvania due to chronic pain, migraines, and persistent fatigue. Around that time, the defendant hospital acquired Medical Associates of NEPA. Palmiter alleged that, despite this acquisition, her superiors had assured her that she would maintain her job and seniority. Palmiter applied for the position of certified medical assistant with the hospital in January 2019 and was notified that she was “a new employee of [the Hospital].” Later that month, however, Palmiter submitted to a pre-employment drug test and tested positive for marijuana. Although Palmiter claimed that she had shared her medical marijuana certification with the drug-testing laboratory, the hospital allegedly terminated her employment due to the positive drug screen.

Palmiter filed a lawsuit against the hospital in the Court of Common Pleas of Lackawanna County, alleging a violation of the MMA’s Section 2103, wrongful discharge in violation of public policy, and various other claims. The hospital unsuccessfully sought an early dismissal of Palmiter’s MMA and wrongful termination claims. In reaching its decision, the Court of Common Pleas of Lackawanna County determined, as a matter of first impression, that Section 2103 of the MMA contained an implied private right of action that allowed Palmiter to bring suit.

The hospital appealed, arguing that the Pennsylvania General Assembly did not intend to create a private cause of action under the MMA. In support of this argument, the hospital noted that the employment provision of the MMA does not contain any limitations period for an aggrieved employee to bring a claim, nor does it indicate what (if any) damages might be available to an employee. Additionally, the hospital noted that the Pennsylvania Department of Health (DOH) bears sweeping responsibility for implementation and enforcement of the MMA, and argued that the MMA conferred exclusive enforcement jurisdiction to the DOH.

Although the superior court acknowledged that Section 2103 lacks any limitations period or damages provisions, it found that those omissions were not dispositive. As the MMA is remedial in nature, the court found that the statute should be given a liberal construction and viewed Section 2103 as containing “rights-creating language” for the benefit of employees prescribed medical marijuana. The court also found that the DOH did not have exclusive enforcement authority over the MMA, and noted that Section 2103 contains rights for employers as well, such as the ability to discipline employees who are under the influence of medical marijuana in the workplace. As a result of this analysis, the superior court determined that the General Assembly intended to allow employees to bring private suit against their employers for violations of Section 2103. Accordingly, the superior court affirmed the trial court’s decision allowing Palmiter’s MMA claim to proceed.

Finally, the superior court held that the trial court did not err in refusing to dismiss Palmiter’s claim of wrongful discharge in violation of public policy. Although the hospital argued that Pennsylvania had never recognized a claim for wrongful discharge based on the results of a drug test, the superior court opined that medical marijuana should be viewed as more akin to a “prescription drug.” In light of these holdings, the superior court remanded the case to the Court of Common Pleas for further proceedings.

Key Takeaways

Although the Court of Common Pleas and the United States District Court for the Eastern District of Pennsylvania had previously reached similar conclusions as the superior court in Palmiter, this appellate decision of first impression will carry significant weight with state and federal courts across the Commonwealth moving forward. Unfortunately, as MMA cases continue to increase, key questions remain about the statute and the risks to employers, such as the relevant statute of limitations and damages available in Section 2103 claims. As a result, Pennsylvania employers may want to stay abreast of the latest developments in this fast-moving area of the law.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.

Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Virginia’s Recreational Marijuana Legislation and New Employee Medicinal Use Protections

On April 21, 2021, Virginia Governor Ralph Northam signed into law House Bill No. 2312 and Senate Bill No. 1406, moving the date of recreational marijuana legalization in Virginia up to July 1, 2021. The legalization movement, which has increased in momentum in the Commonwealth since Democrats gained a majority in the legislature, culminated in February 2021, when the General Assembly passed recreational legalization measures with an effective date of January 2024. The substance of these measures, which remains largely unchanged in the final legislative text, permits the recreational use of marijuana by adults who are at least 21 years old, allows for wholesale and retail sale of marijuana, and allows home cultivation and personal use of marijuana (up to four plants for personal use). Recent amendments that both chambers of the Virginia General Assembly approved on April 7, 2021, modify the statutory provisions legalizing personal possession, gifting, and personal cultivation of marijuana by adults—moving the effective date up significantly from January 2024, to July 1, 2021.  The remaining portions of the legislation, which address various aspects of the wholesale and retail sale of marijuana, remain set for a delayed effective date of January 1, 2024. The legislation is a watershed moment for marijuana legalization advocates, but it does not expressly prohibit employers from restricting or monitoring the recreational use of marijuana by their employees.

Related Protections for Employees’ Medicinal Use of Cannabis Oil

Virginia employers may want to be mindful of a related measure, House Bill No. 1862, passed in March 2021, and effective July 1, 2021, which prohibits an employer from discharging, disciplining, or discriminating against an employee based on the employee’s lawful use of cannabis oil pursuant to a valid written certification for the use of such oil for the treatment of a diagnosed condition or disease.

Under the new law, “[c]annabis oil” is defined as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of the Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol [THC] per dose.” Importantly, cannabis oil should not be confused with popular CBD products that are widely available at retail stores without a prescription and purportedly contain extremely low amounts of THC—the chemical associated with marijuana’s psychoactive effects. Because the new law encompasses cannabis oil products that include THC, employers may no longer rely on a positive test for marijuana as the basis for discipline without first evaluating whether the positive result is associated with the protected medicinal use of cannabis oil.

Virginia employers may also want to be mindful of the enumerated exceptions to the protections for medicinal use of cannabis oil by employees. The new cannabis oil law does not:

  • “restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours”;
  • “require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding”; and
  • “require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”

These carve-outs do not expressly address safety-sensitive positions, which are often granted an exception from legislation protecting medical marijuana cardholder status due to the hazardous nature of the work involved and/or dangerous work conditions. Although the new cannabis oil law does not expressly refer to “safety-sensitive” positions, employers required to comply with federal regulations involving safety-sensitive positions (e.g., Department of Transportation-regulated drivers) may be able to rely upon the “violation of federal law” exception. However, the strength and scope of this exception remains unclear, and employers may want to navigate these issues carefully as the new cannabis oil protections are enforced. As the July 1, 2021, effective date draws near, Virginia employers may want to evaluate applicable federal regulations to address potential conflicts that could arise from employees engaging in off-duty recreational marijuana use or in the medicinal use of cannabis oil.

Expanded Prohibition on Applicant Questions Related to Marijuana Crimes

Virginia’s marijuana legalization legislation modifies the existing ban on requiring a Virginia job applicant to disclose information related to an arrest, criminal charge, or conviction for simple possession of marijuana (i.e., possession of less than one ounce of marijuana), which was decriminalized on May 21, 2020. The recent modification expands the prohibition to include requests for information from an applicant related to any arrest, criminal charge, or conviction for the sale, transfer, distribution, or possession with the intent to sell, give, or distribute less than one ounce of marijuana. Virginia employers may want to review their recruitment and hiring procedures to ensure compliance with the expanded prohibition.

Sweeping Changes for Recreational Marijuana Use in Virginia

The remaining portions of Virginia’s recreational marijuana legislation do not directly impact employers, but the following broad changes will certainly affect Virginia enterprises operating (or preparing to operate) in the marijuana industry:

  • legalization of the possession of marijuana (up to one ounce) by adults who are 21 years of age and older;
  • establishment of the Virginia Cannabis Control Authority and a regulatory structure for the cultivation, manufacture, wholesale distribution, and retail sale of marijuana and marijuana products;
  • a grant of authority to Virginia localities to establish licensing requirements for retail and wholesale marijuana establishments within such localities;
  • a grant of additional authority to Virginia localities to establish licensing requirements for the home cultivation of marijuana for personal use; and
  • creation of tax revenue (estimated in the hundreds of millions of dollars) at the state and local levels.

The legislation also takes aim at entrenched systemic inequities affecting historically marginalized communities (particularly the African-American community) that have been “disproportionately policed for marijuana crimes” through drug-related police encounters, arrests, and convictions. These social provisions include the following:

  • Preferential access to retail and manufacturing licenses for
    • individuals (or their immediate family members) who have been convicted of marijuana-related crimes;
    • graduates of Virginia’s historically black colleges and universities; and
    • individuals living in “economically distressed” neighborhoods or neighborhoods that have experienced disproportionately high rates of marijuana-related arrests.
  • Elimination of civil and criminal penalties for possession of marijuana (up to one once) by adults who are 21 years of age or older
  • Requirement that the Virginia state police determine, by July 1, 2025, which marijuana-related misdemeanor offenses will be automatically expunged from the state’s record system
  • Permission for petitions for expungement of certain records of marijuana-related felony convictions (and juvenile delinquency adjudications)
  • Limitations on the dissemination of criminal record information relating to certain marijuana-related offenses
  • Investment in “educational and vocational resources for historically marginalized persons”
  • Creation and investment in social programs focused on curbing substance abuse and promoting health and wellness initiatives

Worker Protections Added to Final Legalization Bill

The final legislative text also includes provisions that authorize the newly established Virginia Cannabis Control Authority to suspend or revoke a licensee’s marijuana-related business license if the licensee

  • interferes with “union organizing efforts by employees”;
  • fails to pay employees “prevailing wages as determined by the U.S. Department of Labor”; or
  • classifies “more than 10 percent of its workers as independent contractors” when such workers are not “owners in a worker-owned cooperative.”

The inclusion of labor and employment–related provisions in marijuana legalization legislation appears to reflect Governor Northam’s interest in using the marijuana legalization measures to bolster protections for employees and organized labor. Virginia employers operating (or planning to operate) in the marijuana industry may want to review their current labor, wage, and classification procedures to ensure compliance with these new guidelines.

Key Takeaways

Virginia’s legalization measures place the state among the 16 states and the District of Columbia have legalized marijuana for adult recreational use. VermontIllinois, and New York have similarly used legislative action to regulate and tax the recreational use and retail sale of marijuana. As the wave of legalization continues to swell, employers throughout the United States may want to monitor closely state legislative activity for marijuana policy changes.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.

Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Alabama Legislature Approves Medical Marijuana: Roll Tide! (and a Joint?)

On May 6, 2021, the Alabama legislature approved a medical marijuana legalization bill. Senate Bill (SB) 46, more commonly known as the Darren Wesley ‘Ato’ Hall Compassion Act, will now go to Governor Kay Ivey for final approval. Governor Ivey has not indicated that she will veto the bill, although a spokesperson for Governor Ivey has stated that she “look[s] forward to thoroughly reviewing it.”

If Governor Ivey signs the bill, it will go into effect immediately.

The bill lists 16 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Alabama, such as Crohn’s disease, depression, epilepsy, panic disorder, post-traumatic stress disorder, or “any condition” causing chronic pain where other treatment, including with opioids, have been ineffective.

Notably, the bill defines “medical cannabis” to exclude products that can be smoked and vaped, and marijuana-infused food products and to include other products such as oral tablets, gels, oils, creams, patches, or lozenges.

Importantly, unlike many other state medical marijuana legalization laws, the bill does not contain any express employment protections for medical marijuana cardholders. Instead, the bill’s language is employer-friendly in nature. With respect to employment, the bill specifically states that the bill does not:

  • Require an employer to permit, accommodate, or allow the use of medical marijuana;
  • Require an employer to modify job or work conditions for applicants or employees who use medical marijuana;
  • Prohibit employers from taking adverse employment action against medical marijuana cardholders, based either wholly or in part on the individual’s medical marijuana use, and irrespective of impairment;
  • Prohibit employers from establishing and enforcing drug testing, drug-free workplace, or similar policies;
  • Prohibit employers from requiring medical marijuana cardholders to notify employers of medical marijuana cardholder status;
  • Interfere with federal regulations or restrictions, such as U.S. Department of Transportation regulations; and
  • Provide for an express, legal cause of action for an individual to file a legal claim against an employer.

Key Takeaways

In the absence of express employment protection language within the bill, employers likely may take adverse employment action against medical marijuana cardholders with minimal risk of violating the bill. However, Alabama employers may want to remain mindful that even if taking action against cardholders is lawful, cardholders may pursue disability discrimination and accommodation claims related to their marijuana use. Individuals must have a qualifying medical condition in order to be authorized to receive a medical marijuana card, and any of the 16 medical conditions that would make an individual eligible for a card likely would be considered a disability under disability discrimination laws such as the Americans with Disabilities Act (ADA). Courts and administrative agencies around the country have regularly determined that medical marijuana cardholders may assert disability claims under state disability discrimination laws and, in some instances, the ADA. Therefore, Alabama employers should closely monitor this issue going forward.

With marijuana legalization being a new development in Alabama, court guidance and interpretation of the bill and related disability discrimination and accommodation claims will be critical.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.

Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

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