Cannabis has been legalized for recreational and medicinal use in several states across the country, but there is no uniformity in the legal parameters. Laws vary between states, but also within states. A few states have even passed laws to make it illegal to sell or even consume marijuana in the presence of children. It is a complicated and confusing issue that has been causing a lot of problems for not only the cannabis industry, but also law enforcement and people who consume the drug.
Colorado, Washington, Oregon, Alaska, Nevada, Massachusetts, Maine, Vermont and D.C. are all in the process of legalizing recreational marijuana. As the cannabis industry evolves, it is essential to understand the new legislation in order to keep up with changes in the industry. This post will briefly explain the current legislation in each state, including each state’s tax level, marijuana use, and home cultivation rules.
Kentucky is one of the first states in the United States to legalize medical marijuana to treat various ailments. The bill has passed both the house and senate, and was signed into law by the governor.. Read more about federal legalization bill 2020 status and let us know what you think.
On the marijuana legislation front, there has been a recent rush of activity – both in the courts and in the legislatures – in many states. New Jersey Governor Phil Murphy signed three distinct cannabis reform legislation (NJ A21, NJ A 1897, and NJ A5342/NJ S3454) into law on February 22, 2021, officially legalizing the use and possession of recreational marijuana in the Garden State. The new regulations create nondiscrimination standards for recreational cannabis users or marijuana users, clarify that employers do not have a responsibility to accommodate cannabis use in the workplace, and set protocols for employee drug testing, all of which have an effect on New Jersey businesses. The employment portions of the legislation went into force right away, but they won’t be fully operational until the New Jersey Cannabis Regulatory Commission develops implementing rules.
New York Governor Andrew Cuomo signed a law legalizing recreational cannabis in the state of New York on March 31, 2021, as we previously reported. Amendments to and expansions of New York’s legal off-duty behavior statute to safeguard cannabis usage by workers while they are not on the job were among the numerous changes brought about by this new legislation. This statewide move comes after New York City’s April 2019 prohibition on pre-employment cannabis testing, which considers screening for marijuana or THC as a condition of employment to be an illegal discriminatory practice, with a few exceptions.
Other states are coming up to the marijuana legalization craze. State legislators from the East Coast to the South, Midwest, and Southwest have legalized marijuana and prohibited businesses from making hiring choices based on current or prospective workers’ marijuana usage. The following is a summary of the most recent developments:
Alabama Governor Kay Ivey signed the Darren Wesley ‘Ato’ Hall Compassion Act (“Hall Act”) on May 17, 2021. The Hall Act, named after the son of an Alabama legislator who died at the age of 25, authorized some types of medicinal marijuana while expressly stating that Alabama has no intentions to legalize recreational marijuana usage.
The Hall Act limits legal use to cannabis products (not hemp) that may be eaten (for example, as a tablet or non-sugarcoated gummy), applied topically (for example, as a suppository or transdermal patch), or inhaled (through a nebulizer). The Hall Act explicitly prohibits the consumption of smoked or vaped cannabis products, baked foods, or sweets. Patients may be certified and receive medical marijuana cards only for certain enumerated “qualifying medical condition[s],” such as cancer treatment side effects, HIV/AIDS-related nausea or weight loss, other illnesses causing nausea, multiple sclerosis complications, and/or “[a] condition causing chronic or intractable pain in which conventional therapeutic inte The Alabama Medical Cannabis Commission is established under the Hall Act, which would, among other things, administer a medical marijuana program in the state and submit an annual report to the state legislature on the law’s implementation.
Despite the fact that the Hall Act provides certain rights for medicinal marijuana users, it does not compel employers to “permit, accommodate, or enable the use of medical cannabis, or to alter the employment or working circumstances of any employee who participates in the use of medical cannabis.” Employers are also not prohibited from “refusing to hire, firing, punishing, or otherwise taking an adverse employment action” because of a worker’s medicinal marijuana usage under the Hall Act. An employer may take adverse employment action against a medical marijuana user regardless of impairment or lack thereof, and regardless of whether the worker’s medicinal marijuana usage is the only cause or a factor in the employer’s decision. Furthermore, the Hall Act does not provide a cause of action for discrimination in the workplace based on medicinal marijuana usage. In reality, the legislation states that a worker who is fired for taking medicinal marijuana or refusing to take a drug test may be “legally conclusively assumed to have been dismissed for misconduct” in certain situations.
The Hall Act has no effect on workers’ compensation premiums or discounts, or on an employer’s ability to raise defenses to benefits based on the findings of a worker’s drug test. Employers are not barred from implementing or enforcing drug testing measures, including drug-free workplace rules, or from asking employees to declare whether or not they have a medical marijuana card. The Hall Act has no bearing on the Department of Transportation’s employment limitations, and therefore does not apply to unionized employees.
Connecticut, like its tristate neighbors New York and New Jersey, became the 19th state to legalize recreational marijuana use on June 22, 2021, when Governor Ned Lamont signed legislation into law decriminalizing the possession or use of a limited amount of cannabis by adults aged 21 and older as of July 1, 2021.
While adult possession of cannabis is now legal in Connecticut, parts of the cannabis changes, particularly those impacting Connecticut employers, will be phased in over time. Beginning October 1, 2021, all employers must ban smoking in all corporate premises, including the use of electronic nicotine and cannabis delivery systems (i.e., e-cigarettes or vaping devices). Previously, smoking prohibitions were only necessary in businesses with five or more workers, and they did not explicitly prohibit electronic smoking devices. Employers may also establish dedicated smoking areas.
Other provisions that went into effect on July 1, 2022 are:
- Emergency responders, occupations requiring the operation of a motor vehicle or heavy equipment, security clearance, or vocations needing the supervision or care of children, medical patients, or vulnerable people are all excluded from the Act.
- Employers covered by the Act are not required to let workers to consume or be under the influence of cannabis while on the job, but they must enable employees to have (but not use) medicinal marijuana on the job.
- Employers may make written rules banning employees from using, possessing, or consuming recreational cannabis, as well as mandating drug testing. Prior to adoption, such rules must be made accessible to existing workers, as well as potential employees, at the time of any employment offer. Employers will be prohibited from terminating or taking adverse action against employees or prospective employees based on their use, or lack of use, of cannabis products outside of the workplace unless they have federal contracts or other federal funding, with exceptions for employers with federal contracts or other federal funding.
- A positive result for THC in a drug test, with a few exceptions, will not be a legal reason for firing someone or refusing to hire them.
- Employees have a 90-day window in which to file a grievance over an employer’s claimed legal breaches. Reinstatement, back pay, lawyers’ fees, and expenses are among the remedies available to successful litigants.
Governor Greg Gianforte signed legislation on May 18, 2021, about six months after voters approved two ballot initiatives to legalize and regulate marijuana, setting January 1, 2022 as the first day of legal cannabis sales in Montana, allowing adults 21 and older to possess, purchase, and cultivate limited amounts of cannabis and/or THC. Employers are prohibited from refusing to hire or discriminating against a worker based on off-duty usage of a “lawful product” outside of work premises under the new recreational marijuana legal. However, there are times when even off-duty behavior may lead to disciplinary action against an employee. An employer could address such circumstances without violating the state’s new law if off-duty marijuana use interferes with an individual’s ability to perform a job, conflicts with a bona fide qualification reasonably related to a person’s occupation, or violates a contractual obligation requiring abstinence from marijuana. Businesses are not required to allow or accommodate marijuana use in the workplace, and employers are not prohibited from punishing employees who are intoxicated by marijuana products while at work or who violate any other workplace drug policy. In light of the upcoming revisions, Montana businesses should evaluate any pre-employment drug screening obligations as well as employee drug testing practices.
New Mexico is located in the United States.
Adult recreational marijuana usage has been legal in New Mexico since June 29, 2021. Governor Grisham signed the Cannabis Regulation Act (“CRA”), the state’s recreational marijuana measure, into law on April 12, 2021. Employers are given numerous specific safeguards under the CRA. Employers may, for example, “prohibit and take adverse employment action” on the basis of a worker’s impairment, possession, or use of “intoxicating substances,” unless the employer and worker agree otherwise. Employers are not required to take any actions that might violate federal law or result in a federal contract being lost. Furthermore, the legislation does not “prevent or infringe upon an employer’s rights to” establish and maintain written zero-tolerance policies for the use of cannabis products, including imposing punishment up to and including termination for a positive drug test. Employers may retaliate against employees for possessing or using marijuana at work or during working hours.
The CRA does not “invalidate, weaken, or otherwise interfere with any collective bargaining agreement” or the negotiating rights of any party to a collective bargaining agreement in the case of represented employees. The CRA does not apply to air carriers, as defined by Title II of the Railway Labor Act.
Employers, labor organizations, and employment agencies, as well as all of their agents, will be prohibited from forcing job candidates to submit to a marijuana drug test as a condition of employment beginning January 1, 2022, rendering such a drug test a “unlawful employment practice.” However, there are a few exceptions to the rule. For example, the prohibition will not apply to workers in the following safety-sensitive positions: police officers and other law enforcement personnel; any position requiring a commercial driver’s license; any position involving the supervision or care of children, medical patients, disabled or other vulnerable people; and any position in which the worker may have a significant impact on the health of others.
Additionally, the prohibition on pre-employment marijuana drug testing does not apply to certain required drug testing, such as drug testing mandated by any federal or state statute, regulation, or order for safety or security reasons; any contract between the federal government and an employer; and any prospective worker who is a party to a valid collective bargaining agreement.
Employers in Philadelphia should review their pre-employment drug testing procedures in advance of January 1, 2022, establish if any jobs are excluded from the law, and plan to stop pre-employment drug testing for marijuana, if required.
Virginia became the 16th state to legalize marijuana for recreational use in April 2021. Adults over 21 years of age may possess up to an ounce of marijuana and cultivate it at home starting July 1, 2021, according to changes proposed by Governor Ralph Northam and passed by the legislature. However, retail marijuana sales in Virginia will not commence until January 1, 2024. The newly created Virginia Cannabis Control Authority will administer rules for the state’s marijuana sector under Virginia’s recreational marijuana legislation.
The recreational marijuana legislation in Virginia does not include any responsibilities or safeguards for employees. Employers in Virginia may have to wait for the Virginia Cannabis Control Authority to establish rules before determining how the new recreational legislation impacts the workplace.
In addition, additional worker protections under Virginia’s medicinal marijuana legislation went into effect on July 1, 2021. Employers are prohibited from taking adverse employment action or discriminating against employees who use medicinal cannabis oil legally. Employers may still take disciplinary action against employees who are intoxicated while on the job. During working hours, employers may also “prohibit possession.” Employers are also not obliged to take actions that would violate federal law or result in the loss of a federal contract or federal money, according to the revisions. The amendments state that they do not “require any defense industrial base sector employer or prospective employer, as defined by the United States Cybersecurity and Infrastructure Agency, to hire or retain any applicant or employee who tests positive for [THC] in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”
Employers and health-care providers should be prepared to deal with problems that may emerge as a result of a possible contradiction between state and federal law when determining compliance, both in terms of reporting and human resource issues. Employers – particularly those with multi-state operations – must review and evaluate their current policies regarding marijuana use by employees, prospective employees, and patients as states and localities increasingly permit the lawful use of medicinal and recreational marijuana and prohibit certain pre-employment practices.
New Legislation Across Several States. Read more about federal legalization bill 2021 vote date and let us know what you think.
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