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Marijuana Laws Impacting Employers Spread Like a Weed in 2021: A Year in Review


Every year, employers find themselves revising their marijuana and drug testing policies to reflect newly enacted state and local laws. Now it’s no different. Here are some highlights of what happened in 2021.

Connecticut

On June 22, 2021, Connecticut legalized recreational marijuana use by adults 21 and older. While the possession provisions are in effect now, the employment provisions are not in effect until July 1, 2022. At that time, many employers will be prohibited from taking certain actions in the lack of clear policies on marijuana use or evidence of impairment. With a clear and compliant policy, employers can, among other things, prohibit employees from being under the influence, using or possessing marijuana while working and while performing their job or in company premises. If an employer has in place or is implementing a policy that prohibits the use or possession of marijuana by employees, and that policy is made available to employees in advance, the employer may take against an employee who uses marijuana recreationally or who tests positive under reasonable suspicion and random drug testing. In the case of an applicant for employment, an employer may rescind an offer of employment if an applicant tests positive for recreational marijuana as long as the employer makes the policy available to the applicant at the time of the offer.

There are many occupations and industries exempt from the law. And of course, employers should always be aware of the state law protections currently available to users of medical marijuana.

New Mexico

On April 12, 2021, New Mexico saw the legalization of recreational marijuana. Although the law does not offer job protections to recreational users and, in fact, expressly offers several protections to employers, users of medical marijuana do enjoy some protections under current US law. State.

New Jersey

The “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” which was signed into law on February 22, 2021, has received a lot of attention from employers, largely because it arguably prohibits employers from rejecting an applicant for employment that tests positive for marijuana (unless minor exceptions exist, such as positions subject to mandatory drug testing under DOT Part 40).

While the new law, among other things, allows employers to test current employees for marijuana, the law limits an employer’s ability to rely on a positive marijuana test result to make employment decisions. . Specifically, subject to very few exceptions, New Jersey employers may not refuse to employ or discriminate against an employee who uses marijuana or on the sole basis of a positive test result for marijuana metabolites. marijuana, which basically means that an employer can only take action if the employee is impaired by marijuana on the job. On this point, employers need to develop certain processes before relying on a drug test for reasonable suspicion, including conducting physical assessments and appointing a “workplace impairment recognition expert.” (WIRE) who must be trained to detect and identify an employee’s drug use or impairment and to assist in the investigation of workplace accidents. Like us before wrote, the Cannabis Regulatory Commission has not issued WIRE regulations (but is expected to) and has suspended the physical exam requirement.

New York

New York’s Recreational Marijuana Law, approved on March 30, 2021, has also received a lot of attention because it prohibits employers from taking action against someone for using marijuana recreationally when he is not working and therefore arguably restricts an employer’s ability to consider a positive pre-employment marijuana test result (with some exceptions).

Employers can still maintain drug-free workplaces, are not required to accommodate the use, possession, sale or transfer of marijuana in the workplace, and can prohibit employees from being in a state of drunk during working hours. However, the law prohibits employers from refusing to hire, employ, or license, fire, or discriminate against a person because of a person’s lawful use of consumables or lawful recreational activities, which which now includes marijuana under state law. . The law revised New York labor law to prohibit employers from firing or discriminating against an employee for using marijuana outside of work.

Employers can only take employment action based on contrary federal and state legal requirements (eg, Part 40 DOT) and federal contracts. Employers can also terminate an employee based on “specific articulate symptoms” of impaired marijuana use that “interfere with the employer’s obligation to provide a safe and healthy workplace free from recognized hazards” . The New York Department of Labor recently reminded employers in its “Frequently Asked Questions“that a positive marijuana test does not prove work impairment and, therefore, underscored the importance of defensible reasonable suspicion testing policies and practices.

philadelphia cream

More philadelphia cream employers are now prohibited from requiring prospective employees to be tested for the presence of marijuana as a condition of employment. Currently, only New York City and Nevada have similar marijuana testing restrictions.

Exceptions apply to, among other things, any position requiring a commercial driver’s license, positions requiring the supervision or care of children, medical patients, disabled or other vulnerable persons, or positions critical to security, as determined by the law enforcement agency and set forth in the regulations pursuant to the order. It also does not apply to: any federal or state law, regulation or order that requires drug testing of prospective employees for safety or security purposes; any contract between the federal government and an employer or any federal government financial assistance grant to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or any candidate whose prospective employer is party to a valid collective agreement that specifically addresses pre-employment drug testing of such candidates.

Virginia

Virginia dealt with both recreational marijuana and cannabis oil. As for recreational marijuana, a new law allows people 21 or older to possess or use it for recreational purposes. Retail sales will not begin until January 1, 2024. The law does not directly address drug-free workplaces, although it does recognize that marijuana causes impairment and prohibits driving under the influence of marijuana.

Virginia also amended the state’s medical marijuana law to prohibit discrimination against legitimate medical cannabis oil users (as defined in the law). Employers may not fire, discipline, or discriminate against an employee for their lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate symptoms of the diagnosed condition or disease of the employee. employed in accordance with the state cannabis oil. law. There are a handful of narrow exceptions.

Takeaways for employers

Many states are considering enacting new laws or changing existing laws to provide job protections for marijuana users, which could make 2022 another busy year in this area. With public and legislative support for marijuana cultivation, employers with drug testing policies may choose to reconsider their views on marijuana, particularly if they are struggling to recruit and hire talented workers. or if they do not employ security-sensitive or other regulated positions.

Regardless, all employers with drug and alcohol testing programs should consider reviewing their policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. tests will take place and the consequences if drug tests fail. Notably, some states, including Connecticut, Maine, Iowa, and Minnesota (among others) have drug testing laws with policy requirements. Employers should also consider training their managers and supervisors to make and document reasonable determinations of suspicion so they can defend any action taken based on positive marijuana tests.

Finally, relying on state disability discrimination laws, medical marijuana users are filing lawsuits against employers for non-accommodation and disability discrimination, which appear to be gaining traction. Therefore, employers should consider having a clear policy and procedure in place to deal with accommodation requests from applicants and employees who use medical drugs.

We will continue to monitor new developments in this evolving area of ​​law and blog about them in The raw truth.



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