New Laws And The 2021 Cannabis Effect On Employers – Mondaq News Alerts

In the first four months of 2021, numerous states, including
Virginia, New Mexico, New York and New Jersey passed laws
dismantling restrictions on recreational and medical cannabis.
Employers in these states are raising questions about whether the
new laws affect their policies and views toward cannabis use.

Recent Laws

The following briefly summarizes the new bills in each
state.

• Virginia passed a law taking effect in July 2021 that
  eliminates criminal penalties for simple possession of marijuana
  and provides a process to expunge convictions automatically for
  certain marijuana-related crimes. The bill also creates a Virginia
  Cannabis Control Authority, which will regulate the cultivation,
  manufacture and sale of retail marijuana.

• New Mexico passed a law taking effect in June 2021 that
  legalizes recreational marijuana use and sales. Under the law,
  people over 21 will be allowed to have up to 2 ounces of marijuana,
  and individuals could have six plants at home, or up to 12 per
  household. The law also creates a Cannabis Control Division of the
  New Mexico Regulation & Licensing Department to regulate and
  license marijuana distribution.

• New York passed a law effective March 21, 2021, that
  legalized the use of marijuana for adults 21 and older, and set
  forth a framework for the sale of marijuana to begin in 2022. The
  law created two state agencies to regulate the state’s
  marijuana programs: the Cannabis Control Board and the Office of
  Cannabis Management.

• New Jersey passed a law that took effect on Feb. 22,
  2021, that legalized the sale, use and possession of recreational
  marijuana for individuals 21 and older. The law also created the
  Cannabis Regulatory Commission, which, in addition to regulating
  the cultivation, production, manufacture, transportation and
  delivery of marijuana, will prescribe a certification necessary for
  employers to drug test and identify impairment in employees.

Effect on Employers

As state legislatures expand the rights of individuals, those
rights will inevitably cause tension with some employers’
desire to maintain a drug-free workplace. Questions employers
frequently ask include: Can we continue testing applicants and
employees for marijuana? Are employees allowed to be impaired at
work? Must we 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.

• Virginia’s new recreational cannabis law is silent
  regarding its effect on the employer-employee relationship.
  Accordingly, until the commonwealth issues additional regulatory
  guidance, the law does not change generally accepted principles
  about how employers can control their workplaces. For example, the
  law does not prohibit employers from testing applicants for
  marijuana, and employers can continue prohibiting possession and
  impairment in the workplace. No precedent expressly states whether
  an employer must accommodate an individual’s use of medical
  marijuana in Virginia.

• A second law Virginia enacted in 2021, however,
  prohibits employers from discriminating against employees who use
  cannabis oil, so long as employees have valid written certification
  issued by a practitioner to treat symptoms of certain conditions.
  However, employers can still prohibit impairment caused by cannabis
  oil and can prohibit possession during work hours. The law also
  does not require employers to do anything that would result in the
  violation of federal law, lose a federal contract, lose federal
  funding, or require U.S. Cybersecurity and Infrastructure Security
  Agency defense industrial base sector employers to hire someone who
  tests positive for tetrahydrocannabinol (THC). As previously reported, Virginia also prohibits
  employers from requiring job applicants to disclose information
  concerning any arrest, criminal charge or conviction for simple
  possession of marijuana.

• New Mexico’s law allows employers (in the absence of an
  agreement to the contrary) to implement a written zero-tolerance
  drug policy that prohibits employees from testing positive for THC.
  Importantly, however, the law does not restrict rights afforded to
  medical marijuana users under state law. As a result, with limited
  exceptions, an employer is still prohibited from taking an adverse
  action against an applicant or employee on the basis of the
  individual having a prescription for and/or using medical
  marijuana.

• New York’s law protects employees’ marijuana use that
  occurs outside of working hours, off the employer’s premises,
  and without use of the employer’s equipment or other property
  under the same law protecting employees’ legal recreational activities outside work. Notably,
  the law does not prevent an employer from taking action where: (a)
  the employer’s actions were required by state or federal law;
  (b) the employee is impaired by the use of marijuana while working,
  which requires the employee to have „specific, articulable
  symptoms” that impair the employee’s performance or
  interfere with the employer’s obligation to provide a safe and
  healthy workplace; or (c) the employer’s actions would violate
  a federal law or would result in the loss of federal contract or
  funding.

• New Jersey’s law includes expansive protections for all
  employees who use medical marijuana. Employers may not take adverse
  action against an employee who uses marijuana, or because of the
  presence of marijuana in the employee’s system. Further, the
  statute prescribes the circumstances under which an employer may
  drug test an employee, but requires, among other things, that the
  test include „a physical evaluation in order to determine an
  employee’s state of impairment” performed by a Cannabis
  Regulatory Commission-certified individual.

• None of the new laws require employers to allow employees to be
  impaired at work or possess or consume cannabis in the workplace or
  while on the job.

Interaction With Other Laws

In addition to the issues employers face controlling their
workplaces, employers must be aware of how new cannabis laws
interact with other state and federal laws.

• Reasonable Accommodations: In some
  circumstances and in some jurisdictions, an employer must grant an
  employee’s request for a reasonable accommodation if the
  employee has a disability under state law. This is a
  state-dependent issue, and the states are split on the issue. For
  example, states that permit employers to terminate employees for
  using marijuana regardless of their disabilities include
  California, Colorado, Florida, Georgia, Mississippi, Montana, Ohio,
  Oregon and Washington. States that provide a private right of
  action for failing to accommodate use to treat a disability (or
  otherwise require accommodating medical marijuana use) include
  Arizona, Arkansas, Connecticut, Delaware, Maine, Massachusetts,
  Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma,
  Pennsylvania, Rhode Island and West Virginia. State statutes and
  case law are subject to change, so employers should consult with
  counsel when confronted with any request for an accommodation to
  use cannabis.

• Federal Drug-Free Workplace Laws: The
  Drug-Free Workplace Act (DFWA) requires certain federal contractors
  and federal grant recipients to maintain drug-free workplaces. This
  requires a workplace where employees are prohibited from
  manufacturing, distributing, possessing or using controlled
  substances. Courts have held that the DFWA does not prohibit
  federal contractors from employing someone who uses illegal drugs
  outside the workplace. Accordingly, federal contractors and
  grantees may be required to comply with state law and this federal
  law simultaneously.

• Commercial Drivers: Employers governed by the
  U.S. Department of Transportation, including companies that employ
  individuals who drive under a commercial driver’s license, must
  take into account the DOT’s robust regulations regarding drug
  testing and possession. The DOT has made clear on multiple occasions that states’
  legalization of marijuana has not modified the DOT’s
  drug-related regulations. Accordingly, the DOT expects employers to
  continue following federal law with respect to DOT-regulated
  employees.

• Collective Bargaining Agreements: Employers
  subject to a collective bargaining agreement should remember that
  changing drug testing or drug use policies may be prohibited
  without negotiating with the bargaining unit.

Employers should routinely review their drug use and drug
testing policies to ensure they remain compliant with ever-changing
state and local laws.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.