With just under four weeks until Election Day, the push to legalize medical marijuana in Utah continues to progress. After years of failed efforts in the state legislature, the issue is being presented directly to voters by way of Utah Proposition 2, the Medical Marijuana Initiative. If the referendum passes, it will legalize medical cannabis for individuals with qualifying conditions. Eligible conditions include autoimmune diseases, Alzheimer’s, cancer, and chronic pain where the patient is unable to use opiates, among several other ailments.
Allowing medical use of cannabis is not a brand new idea in the Beehive State, however. In 2014, Governor Gary Herbert signed a bill legalizing possession and use of low-THC CBD oil by registered patients suffering from intractable epilepsy if such treatment was recommended by a physician. The catch was that the bill provided patients with no means of legally acquiring the oil in Utah. Then, in 2018, the Right to Try bill authorized and regulated the sale of CBD within the state by allowing terminally ill patients to use medical marijuana cultivated and distributed by the Utah Department of Agriculture and Food. It also included a requirement that the DAF ensure by January 1, 2019 that cannabis is grown in Utah and can be sold to research institutions and terminally ill patients who have less than six months to live.
The proposed language of Prop. 2 would expand upon previous legislation to allow individuals with qualifying conditions to receive a medical marijuana card upon a physician’s recommendation. During any given 14-day period, these individuals would be allowed to purchase either 2 ounces of unprocessed marijuana or an amount of marijuana product with no more than 10 grams of THC or cannabidiol. The law as proposed would, after January 1, 2021, allow medical cardholders to grow six marijuana plants for personal use within their homes if they live further than 100 miles from a dispensary. In addition, the law would allow qualifying individuals to designate up to two caretakers to be issued medical cards in order to acquire cannabis or cannabis products on their behalf.
Even if the ballot measure passes, however, it is not the end of the road to establishing a medical cannabis program in Utah. On October 3, negotiations between state legislators, Prop. 2 supporters, and those opposing the referendum ended in agreement about prospective alterations. If the measure passes, the agreement will be addressed by the state legislature, not as a new bill, but instead as modifications to Prop. 2 that the parties find acceptable. One such compromise would likely remove the provision allowing individuals who live more than 100 miles from a dispensary to grow their own plants.
Moreover, despite opposing Prop. 2, Governor Herbert has called for a special session of the state legislature following the November election to create a medical cannabis policy in Utah even if voters reject Prop. 2 at the polls. He stated that “whether it passes or fails, we’re going to arrive at the same point and conclusion, which is going to be (of) benefit to the people of Utah.” Utah is just one of several conservative states whose legislative leaders are becoming more agreeable to providing means for qualified patients to access medical cannabis.
With regard to how Utah’s forthcoming medical marijuana policy will impact employers, the future is unclear. Current law allows employers to require applicants to submit to drug testing as a condition of employment as well as require employees to take a drug test for investigative purposes. The omission from Prop. 2 of language concerning employee drug testing is glaring in the face of current litigation trends across the country. Employees who were terminated after failed tests as a result of legal, off-the-clock medical marijuana use are finding success in state courts despite cannabis remaining illegal on the federal level. It appears that employers will have to wait until after Utah’s special legislative session to see whether these new laws will specifically address the issue of workplace drug testing.
Another grey area arising out of the proposition is what effect legalizing medical cannabis will have on drivers in the state. Utah’s definition of a “controlled substance” includes any substance listed as a Schedule 1 drug under federal law, which currently still includes marijuana. Moreover, drivers being “legally entitled” to use a particular drug is not a defense to being under the influence of “any drug to a degree that renders the person incapable of safely operating a vehicle.” Notably, the proposed language of Prop. 2 only mentions drivers in the context of requiring the state to have an electronic verification system in place by 2020 that allows law enforcement to determine whether an individual subject to a traffic stop is a medical cannabis cardholder. Hopefully, this issue is on the legislative radar when it comes time to solidify the state’s new policy.