States and localities in the U.S. have increasingly moved forward to formally legalize the use and possession of medicinal and recreational marijuana. However, as the marijuana craze continues to sweep across the nation, employers are left wondering how their current hiring and drug testing practices might be affected. Below, we provide a roundup of the most recent developments to help employers remain compliant in 2022.
Join us for our upcoming webinar, “Marijuana Laws for Employers: What’s Changed? Hint: Everything,” on Wednesday, February 16th at 11 a.m. PST/2 p.m. ET. In this webinar, we will review which marijuana laws impact employers and discuss key areas on which employers need to focus when it comes to staying compliant in the evolving legal landscape.
In May 2021, the “Hall Act” was signed into law by Alabama Governor Ivey. The Hall Act was passed to legalize specific forms of medical marijuana and state that recreational use of marijuana will not be legalized in Alabama. This means that nearly all forms of marijuana possession, sale, or trafficking in Alabama are illegal unless it’s for medicinal purposes. Patients who want to purchase medicinal marijuana must register under “qualifying medical conditions”.
Under the Hall Act, employers don’t have to allow or accommodate the use of medical marijuana. Employers can still take adverse action against a medical marijuana patient, as well as have the liberty to create a drug-testing policy against medical marijuana.
Connecticut legalized the use of recreational marijuana for adults 21 years and above on June 22, 2021. Possession-related provisions went into effect immediately, while employment-related provisions will go into effect on July 1, 2022. After this time, employers will not be allowed to take certain actions without a clear policy specifically addressing the usage of marijuana. Employers may still continue to prohibit possession or use of marijuana in the workplace during workplace hours and on employer premises.
It is recommended for employers in Connecticut to update their drug-free and drug testing workplace policies. Employers will need to have a written policy prohibiting recreational marijuana use if they want to take adverse employment action. Many positions and safety-sensitive industries are exempt from the law.
Governor Greg Gianforte signed legislation to legalize and regulate marijuana on May 18, 2021, which went into effect January 1, 2022. This law allows adults 21 years and older to lawfully possess and recreationally use marijuana. The law also includes provisions will prohibit employers from refusing to hire an applicant for recreational use of marijuana outside of workplace premises.
There are still exceptions to this law, in which recreational usage outside of workplace premises could still be held as an account to take adverse action against an employee. Montana employers can still prohibit workplace use and possession during work hours, on work premises, or under the use of an employer’s equipment and property.
The Cannabis Regulation Act (CRA) was signed into law on June 29, 2021, to legalize adult recreational use of marijuana. This law provides several protections for employers, although medical marijuana users are granted certain protections under the CRA. Employers can prohibit and take adverse employment action based on a worker’s possession, impairment, or use of “intoxicating substances”. In addition, the law still allows employers to create and maintain written zero-tolerance policies regarding recreational marijuana.
New Jersey signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” into law on February 22, 2021. This law prohibits employers from refusing to hire an applicant for testing positive for marijuana, aside from specific exceptions. And although the law allows employers to drug test employees for marijuana, it still imposes limitations on the employer’s ability to use the basis of a positive marijuana test to make any employment-related decisions.
Other than certain exceptions, New Jersey employers can only take action if the employee is impaired by marijuana at work – and even then, employers will need to have processes in place before relying on a reasonable suspicion drug test.
On March 30, 2021, New York approved a bill legalizing the recreational use of marijuana. Similar to New Jersey, this bill also provides protection to employees for the use of recreational marijuana outside of workplace premises. Employers also are restricted in their ability to make employment related decisions on the basis of a positive pre-employment marijuana test result.
Employers are still able to maintain a drug-free workplace policy, however, a positive marijuana test alone is not enough to prove impairment at work, so employers will need to have defensible reasonable suspicion testing policies.
Mayor Jim Kenney signed Philadelphia’s ordinance, “Prohibition on Testing for Marijuana as a Condition for Employment,” on April 22, 2021. This ordinance took effect on Jan. 1, 2022 and specifically prohibits employers from requiring an applicant to submit to pre-employment marijuana testing as a condition of employment. The ordinance does outline exceptions for certain positions in industries including law enforcement, healthcare, and transportation. The ban on pre-employment marijuana testing also does not apply to employers who are required to test for marijuana due to federal or state statute or where drug testing is required by a contract between an employer and the federal government.
It is recommended for Philadelphia employers to update any pre-hire materials and processes in accordance with the new ordinance.
Virginia legalized recreational use of marijuana on April 2021, allowing adults 21 years and older to also possess up to an ounce of marijuana and cultivate marijuana in their home. This law prohibits employers from taking adverse employment action or discriminating against an employee’s lawful use of medical cannabis oil. Employers are still able to take adverse employment action against employees who are impaired in the workplace and prohibit possession during work hours.
Join Accurate’s upcoming webinar for more information on how these new marijuana policies will affect you as an employer, as well as drug testing considerations and information on issues for regulated employers.