Jennifer Mora is the assistant editor for The Blunt Truth®, as well as a Labor & Employment senior counsel in the Los Angeles office and key member of Seyfarth’s Workplace Compliance Solutions group.

Since 2014, Minnesota has provided applicants and employees with protections if they lawfully use cannabis for medicinal purposes. Starting August 1, 2023, Minnesota will provide protections to individuals who use cannabis for recreational purposes, after Minnesota Governor Tim Walz signed a state law allowing adults 21 and older to use recreational cannabis. The new law amends the state’s Consumable Products Act to protect off-duty cannabis use. The law also amends Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) by excluding cannabis from the definition of “drug” and by creating two different workplace drug testing schemes based on whether positions are exempt from the cannabis testing prohibitions. Continue Reading Minnesota’s New Recreational Cannabis Law Results in First-Of-Its-Kind Drug Testing Scheme

On May 25, 2023, the U.S. District Court for the District of New Jersey granted an employer’s motion to dismiss a putative class action in Zanetich v. Wal-Mart Stores E., Inc.  Addressing an issue of first impression, the Court held that job applicants do not have a private right of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the “CREAMMA”), the state’s recreational marijuana law.  The Court also held that there is no common law claim for wrongful failure to hire in violation of public policy in New Jersey. Continue Reading Failure to Hire Claims Go Up In Smoke for Pot-Using New Jersey Job Applicant

On September 18, 2022, California amended its primary employment discrimination law to specifically regulate the drug testing methodologies that employers may use when making hiring, termination, and other employment decisions relating to cannabis users. More recently, on May 9, 2023, Washington Governor Jay Inslee signed similar legislation relating to initial hiring decisions. Both laws, which will be effective January 1, 2024, are the first of their kind because they require employers to have a basic understanding of a somewhat complicated issue – the science behind cannabis testing.Continue Reading Clearing the Haze: The Method and the Madness Behind the New Cannabis Laws in California and Washington

Nevada, like most states, has legalized cannabis for medicinal use. Although permitted under state law, a Nevada employee may still face discipline under a company’s drug policy. To address that concern, the Nevada Legislature passed a law requiring employers to attempt to make reasonable accommodations for its employees’ use of medical cannabis outside of the workplace. As a matter of first impression, the Nevada Supreme Court recently decided that employees may sue employers who violate that law.Continue Reading Nevada Supreme Court Finds a Private Right of Action Under Nevada’s Medical Cannabis Law

In the last two years, more jurisdictions have passed laws providing employment protections to applicants and employees using cannabis on their free time, including in New York, Washington, DC, and California. Recently, however, the Supreme Court of Nevada upheld dismissal of an employee’s lawsuit, which claimed that his termination for testing positive for recreational cannabis violated the state’s lawful off-duty product law. (Ceballos v. NP Palace, LLC, Aug. 11, 2022.)Continue Reading Nevada Supreme Court Holds Recreational Cannabis is Not a “Lawful” Off-Duty Product

On September 18, 2022, California Governor Gavin Newsom signed AB 2188, which will make it unlawful for California employers to rely on cannabis test results for employment purposes, unless in very narrow circumstances.

By including the law as an amendment to the Fair Employment and Housing Act (FEHA), the new law, which is effective January 1, 2024, essentially makes cannabis users a protected class in California.Continue Reading California Employers See Most Cannabis Testing Go Up in Smoke

As previously reported here, on February 22, 2021, New Jersey Governor Phil Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), which amended the New Jersey Constitution to legalize recreational cannabis.

The law allows employers to conduct numerous forms of drug testing for cannabis, but limits an employer’s ability to rely on a positive cannabis test result in making employment decisions. It requires that a drug test include both “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation.” The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of cannabis. The law tasked the Cannabis Regulatory Commission with adopting standards for this “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and to assist in the investigation of workplace accidents.Continue Reading New Jersey Cannabis Regulatory Commission Issues Guidance on “Workplace Impairment” Determinations

On May 25, 2022, Rhode Island Governor Daniel McKee signed “The Rhode Island Cannabis Act,” which grants adults aged 21 and older the right to possess and grow certain amounts of cannabis for recreational use. Retail sales are expected to begin as early as December 1, 2022. The new law, which is effective immediately, joins the growing number of states restricting the ability of employers to conduct pre-employment cannabis testing and act based on their employees’ lawful off-duty use, most recently in District of Columbia and New York.

The Cannabis Act allows employers to maintain and enforce a drug-free workplace policy that prohibits employees from using or possessing cannabis in the workplace and from being under the influence of cannabis while they are performing work, including remote work. The law also does not require employers to accommodate the medical use of cannabis in any workplace. Of course, employers still must be mindful of the employment protections included in the state’s separate medical marijuana law.Continue Reading Rhode Island Legalizes Cannabis for Recreational Use

The District of Columbia legalized cannabis for medicinal purposes in 2010 and began to permit individuals to use the drug recreationally in 2015. Last month, on July 13, 2022, Washington, D.C. Mayor Muriel Bowser signed the “Cannabis Employment Protections Amendment Act of 2022” (D.C. Act 24-483), joining the growing list of jurisdictions prohibiting most employers from taking adverse action (e.g., rejecting job applicants or terminating employees) for off-duty cannabis use. The bill must go through a congressional review period before becoming law.

About the Act

What employers may not do:

The Act will make it unlawful for most employers to refuse to hire, terminate, or take other adverse employment action based on (1) an individual’s use of cannabis or status as a medical cannabis program patient or (2) the presence of cannabinoid metabolites in the individual’s bodily fluids in any drug test, absent “additional factors indicating impairment.” On the latter point, an employer can take action against an employee for cannabis use if “the employee manifests specific articulable symptoms while working, or during the employee’s hours of work, that substantially decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position,” or if such “specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace as required by District or federal occupational safety and health law.”Continue Reading District of Columbia Provides Employment Protections to Cannabis Users

The latest Gallup poll shows that 68% of Americans support cannabis legalization. Further, the rate of positive cannabis test results has jumped in the last decade. And according to recent news reports, some large employers have stopped testing job applicants for cannabis. As a result, other employers may be pondering whether to change their approach to an increasingly popular drug
Continue Reading To Test or Not to Test: Considerations for Employers Pondering the Future of Their Cannabis Testing Practices