What a year it’s been in legalizing cannabis—from conservative states legalizing medical marijuana—to city ordinances imposing cannabis requirements. Changes in Cannabis laws are definitely creating a buzz for SF and Utah employers.

Background Checks SF. San Francisco, known for its forward progress in the cannabis space, has done it again. Effective October 1, 2018, employers are prohibited from “inquiring about, requiring disclosure of, or basing employment decisions on convictions for decriminalized behavior, including the non-commercial use and cultivation of cannabis.” The ordinance restricts employers from asking questions about pot convictions and, instead, authorizes the City to impose penalties on employers who violate the ordinance. Some of the penalties include a private right of action for the victim and monetary payment.

Notably, in conformance with California’s Fair Chance Employment Act, the ordinance does allow employers to ask about convictions after a conditional offer of employment has been made. Under the Act, employers can deny an applicant a position of employment because of the conviction, but the employer must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job which justify denying the applicant the position. In making the assessment, the employer must consider the nature and gravity of the offense or conduct; the time since the offense; and the nature of the job held or sought.  For more information on what else an employer is required to do when contemplating denying employment to an applicant, contact your favorite Seyfarth cannabis attorney.

Could Utah’s cannabis legalization be up in smoke? As previously reported, Utah legalized medical marijuana this midterm through Proposition 2. Proposition 2 failed to include important provisions in its initiative, including what rights employers would have.

However, Utah’s House of Representatives held a special legislative session whereby lawmakers changed Proposition 2 and adopted more restrictive provisions in what is being called the medical cannabis compromise. These restrictive provisions include employer protections. For example, a draft of the medical cannabis compromise states that an employee may not “be under the influence of a controlled substance or alcohol during work hours” nor can the employee “refuse to submit to a drug or alcohol test.” (Section 67-19-33).

The compromise also states that employees cannot manufacture, dispense, possess, use, or distribute a controlled substance if: (1) the activity prevents state agencies from receiving federal grants or performing under federal contracts of $25,000 or more; or (2) the activity prevents the employee from performing his “services or work for state government effectively as regulated by the rules of the executive director.”

Although Utah lawmakers tried to clear the haze left by Proposition 2, a pair of advocacy groups have since filed a lawsuit to block the medical cannabis compromise. The groups argue that the compromise is unconstitutional and interferes with what the voters enacted. The group asked the Utah Supreme Court to allow a referendum on the legislature’s action and allow them to go before voters to challenge the medical cannabis compromise. Alternatively, they seek to overturn the compromise and instead, keep Proposition 2 as the law.

While this lawsuit may be a long shot because the legislature has the legal authority to modify or replace ballot initiatives, you’ll want to stay tuned for further updates as this story develops.

And if you’d like to get a preview of what 2019 may have in store for California and cannabis, check out “Pot-Protective Employment Laws Loom in 2019” in the Los Angeles Lawyer magazine.

 

Georgia workers want to know if they can get fired for legally using cannabis oil.

In Georgia, employees risk being penalized by their employers for their legal use of Cannabidiol (CBD) oil while performing their jobs.  Employers wishing to maintain a drug-free workplace are concerned about employees performing their duties impaired if they use CBD oil, even when CBD oil contains low levels of Tetrahydrocannabinol (THC) and has proven to be safer and more effective than opioids.

The lack of clear guidelines is frustrating workers. State law allows employees to use CBD oil, while other laws allow employers to fire workers for using it. Georgia lawmakers are looking to move the ball forward on harmonizing the employer’s goal of prohibiting working under the influence on the one hand with the patient’s goal of legally treating health conditions on the other.

Legislators will have to categorize CBD oil.

Did the CBD oil come from marijuana or hemp?

Both marijuana and hemp are plants that come from the “cannabis” family. The primary difference between the two plants is the level of THC present. Marijuana plants can have THC levels of up to 30%, whereas there is usually less than .3% of THC in hemp (you can’t get high from .3%).

After the Agricultural Act and Farm Bill in 2014 drew some attention to hemp, the Industrial Hemp Farming Act of 2015 removed hemp from the controlled substance schedule so long as there was no more than .3% THC. Therefore, hemp derived CBD oil is legal; but under federal law, CBD oil derived from marijuana is illegal.  The legality of marijuana derived CBD oil at the state level depends on how individual states treat marijuana.

But what if we remove the THC from marijuana derived CBD oil?

18 states, including Georgia, are in the process of passing legislation to specifically address this issue and resolve the relationship between THC threshold and CBD oil categorization.

Georgia should have clearer answers after the 2019 legislative session.

Currently, Georgia allows for the use of low-THC CBD oil, but the lack of clarity requires forward-thinking legislation to satisfy employers concerned about impaired workers while protecting patients who are following state law while performing their jobs.

Back in March, 2016, House Bill 722 was introduced to allow Georgia manufacturers to grow and cultivate medical marijuana in-state under strict controls. While this early legislation left pro-cannabis legislators wanting more, it allowed for the limited use of CBD oil to treat severe illnesses. By the conclusion of the 2017 legislative session, SB 16 and HB 65 broadened the conditions eligible for treatment from low THC CBD oil (including PTSD, intractable pain, and Alzheimer’s).

Earlier this year, a resolution was passed to study industrial hemp production.  This optimistically signals that much needed clarity should result from the upcoming legislative session in 2019.

In the stoner-classic, “Cheech and Chong’s Next Movie,” Cheech Marin laments: “I’m gonna be late for work again. That’s the fifth time this week, and it’s only Tuesday, man.” While Cheech’s calculations remain a mystery, the prospect of employees coming to work while under the influence of marijuana presents a concerning picture for employers.  In an era where medical marijuana is legal in certain circumstances under the state laws of New York, New Jersey, and Connecticut – and with Vermont on the verge of making marijuana entirely legal – it is critical for employers to educate themselves on their rights and obligations with regard to these laws. This article provides employers in the tristate area with practical guidance on the medical marijuana laws of New York, New Jersey, and Connecticut.  Continue Reading Smoking Out the Tristate Area: Employer Concerns with Local Medical Marijuana Laws

With Pennsylvania joining in last month, nearly half the country has laws permitting state residents to use marijuana for medical purposes, and a handful even permit recreational use. California led the movement when it passed the so-called “Compassionate Use Act” in 1996. At present, use and distribution of marijuana remain federal offenses, although unenforced per current U.S. Department of Justice policy.

The increasing accessibility of marijuana over the years, as well as its acceptance into mainstream culture, have led to serious misconceptions regarding its permissibility in the workplace. We offer here a few reminders to help clear up this this sometimes “hazy” area of California law. Continue Reading A “Hotbox” Of Legal Issues: California’s Workplace Marijuana Laws

Almost a majority of the states allow medical marijuana, so a common question is how does the use of medical marijuana affect the rights under other laws, and in particular, the Family Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”)?

The FMLA allows employees who have been employed for at least one year with their employer, and worked 1250 hours in the last year for that employer, to take up to 12 weeks of unpaid leave, provided they work at a location where there are at least 50 employees within 75 miles of the location. The 12 weeks can be for family leave – birth or adoption of a child, or medical leave – if the employee is sick or they need to care for certain sick family members.  The ADA prohibits employers from discriminating against those who are disabled, and those associated with a disabled person.  In addition, the ADA requires employers to provide reasonable accommodations to the disabled employee so the employee can perform the essential duties of their job. While these two laws give employees certain rights, one must also remember that marijuana use is illegal throughout the United States under federal law, even in those states where its use is legal under state law. Continue Reading ADA, FMLA and Medical Marijuana, How Do They Mix?

More and more cities and states are legalizing the use of marijuana for medical and recreational use.  The good news is that means in those jurisdictions the local and state police will not arrest you if your use conforms to the local/state law-medical use states require a prescription and recreational use laws usually limit the amount of marijuana one can possess.  In addition, federal prosecutors, at least under the current administration, will not prosecute you for use which is legal under state and local laws.

Now the bad news.  Marijuana use is still illegal under federal law, 21 U.S.C. § 801 et seq., since it is listed as a schedule 1 controlled substance.  That means its use is not protected by the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., (“ADA”) because the ADA does not protect the current use of an illegal drug.  Moreover, most employees are at-will employees, so they can be fired for good cause, bad cause, or no cause.  Thus, if an employer wants to fire employees who use marijuana away from work, it is likely that the employer can legally do so. Continue Reading Legalizing Marijuana – Off-Duty Use – An Employer’s Quandary