Michigan becomes the tenth state to legalize cannabis on a recreational level, and Missouri and Utah now join thirty-one other states who have legalized medical marijuana. But what’s next and how will this affect employers?

Here is a quick summary of some of the major issues employers may face now that cannabis is legal in Michigan, Missouri, and Utah.

Michigan. Employers can rejoice in that the recreational bill leaves their right to refuse to hire or to discharge an employee intact. The act “does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

Compared to some of the other recreational bills that have been passed, this one gives employers some leeway in allowing them to refuse to hire, refuse to accommodate, or discharge an employee simply for violating their drug policies. In order to obtain the protections afforded by this bill, employers that operate in Michigan must confirm that they have adequate anti-drug policies prohibiting the use of marijuana in the workplace.

Missouri. Amendment Two passed by a margin of 66 percent to 34 percent. What this means is that qualified patients who have approval from their physicians will receive identification cards from the State that will allow them to consume marijuana.

The bill affords some level of protection to employers. The bill states that a person cannot bring a claim “against any employer, former employer, or prospective employer for wrongful discharge, discrimination or any similar cause of action or remedy” based on the employer “prohibiting the employee, former employee, or prospective employee from being under the influence of marijuana at work … or for attempting to work while under the influence of marijuana.”

While this bill in theory provides employers some protections, the difficulty employers face is testing for intoxication and determining if the employee is under the influence at work. THC accumulates and slowly releases overtime, such that chronic users may test positive even after many days of abstinence. Further, the way the body metabolizes THC makes it possible that the effects of marijuana continue long after the drug ceases to be detectible via blood tests. Thus, employers need to make sure they train their supervisors on how to properly detect cannabis use. Examples include looking for visible signs of cannabis use, such as, slowed productivity, weed odor, and blood shot eyes.

Utah. Interestingly, the Utah Medical Cannabis Act is silent as to what protections employers are afforded. While current law allows employers to drug screen applicants and allows existing employees to engage in drug testing for investigative purposes, the bill seems to imply that it may allow medical card users more protections in the employment context. Under the “Nondiscrimination” section, the bill states that cannabis use does “not constitute an illegal substance.” That section also prevents landlords from refusing to lease or from penalizing a person simply for being a marijuana card holder. Oklahoma had a similar landlord provision, and there, employers could not discriminate against a person in “hiring or termination or from imposing any term or condition of employment or other penalize a person based upon their status as a medical marijuana card holder or the results of a positive drug test.” Thus, it’s likely that Utah may adopt a similar provision. However, until Utah clears the smoke, employers remain in a haze as to what protections they have. Stay tuned for growing developments.

 

Just two years ago, North Dakota voters passed medical marijuana legalization with 64 percent support. Now, North Dakota could join a number of sanctuary states legalizing recreational marijuana.

Through an effort called Legalize ND, proponents of recreational marijuana submitted more than the required 13,452 valid petition signatures to get a measure on the November 2018 general election ballot.

If passed, the measure would legalize the cultivation, possession, use, and distribution of marijuana and authorize the state, counties, and other municipalities to tax the sale of marijuana at no more than 20 percent. The measure would also remove penalties related to marijuana use from state law.

However, voters should expect an uphill battle. Opponents argue that legalization will create a lot of problems with regard to regulations and will increase crime. But if passed, one thing’s for sure, if you can smoke it there, you may well be able to smoke it anywhere.

So how will this affect employers? It’s a bit hazy. The measure does not have any specific provisions impacting an employer’s right to drug test or to make employment decisions based on a positive drug test.

However, based on North Dakota’s medical marijuana provisions which provide that the statute does not prohibit an employer from disciplining an employee for possessing or consuming usable marijuana in the workplace or for working while under the influence of marijuana, one can assume the same may apply if North Dakota legalizes recreational marijuana.

Stay tuned for all the growing developments in North Dakota.

On November 8, 2016, Maine voters approved “Question 1 – An Act to Legalize Marijuana,” and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. The voter-approved law would have allowed persons 21 years of age or older to use or possess up to 2½ ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person’s residence, up to 6 flowering marijuana plants (and up to 12 immature plants). It also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities.

The law was to become fully effective on January 30, 2017. However, on January 27, 2017, the legislature approved a moratorium on implementing parts of the law regarding retail sales and taxation until at least February 2018, giving time to resolve issues and promulgate rules. However, on November 3, 2017, Governor Paul R. LePage vetoed legislation designed to set up a retail market for cannabis. On November 6, 2017, the Maine legislature sustained the Governor’s veto. Continue Reading Not So Fast: Maine Legislature Overrides Governor’s Veto of Recreational Marijuana Law

On January 22, 2018, Vermont Governor Phil Scott signed H. 511, allowing adults to possess recreational marijuana, making Vermont the first state in the nation to pass such a law in the legislature rather than at the ballot box. Vermont joins eight other states that have legalized recreational marijuana, as well as Washington D.C.  Nearly 30 states, including Vermont and Washington D.C., also have medical marijuana laws on the books. Polls show that most Americans favor legalizing marijuana at the national and local levels. An October 2017 Gallup poll found national support for legalization at the federal level to be at almost 64%. Continue Reading Vermont Legislature Legalizes Recreational Marijuana

On November 8, 2016, Maine voters approved “Question 1 – An Act to Legalize Marijuana” (“Act”), and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. As approved, the Act would have allowed persons 21 years of age or older to use or possess up to 2½ ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person’s residence, up to 6 flowering marijuana plants (and up to 12 immature plants). The Act also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities. Importantly for employers, the Act was the first law of its kind in the nation establishing express anti-discrimination protections for recreational marijuana users.

The Act was to become fully effective on January 30, 2017. However, on January 27, 2017, the legislature approved a moratorium on implementing parts of the law regarding retail sales and taxation until at least February 2018, giving time to resolve issues and promulgate rules.

Continue Reading Maine Legislature Fails to Override Governor’s Veto of Recreational Marijuana Law

While Attorney General Jeff Sessions continues to put the marijuana industry on edge with his recent efforts to clamp down on the “hands off” policies of the Obama-era Department of Justice, U.S. Senator Cory Booker (D-NJ) has introduced an ambitious piece of legislation that would change the landscape of how marijuana is addressed at the federal level.

The Marijuana Justice Act proposed by Senator Booker would remove marijuana from its current classification as a Schedule I drug under the Controlled Substances Act (CSA).  Schedule I drugs are the most serious category of illegal substances – which along with drugs such as heroin, LSD, and MDMA – have the highest potential for abuse and purportedly have no currently accepted medical use.  Meanwhile, drugs such as cocaine, methamphetamines, and opiods all fall under the Schedule 2 classification and are considered less dangerous under the CSA.

Unlike prior attempts to legalize marijuana and change its classification under the CSA, such as those from Senator Bernie Sanders, Rep. Jared Polis (D-Colo.), and Rep. Tom Garrett (R-VA), the Marijuana Justice Act appears to be rooted in social justice and seeks to “retroactively expunge people who have been convicted of use and possession of marijuana,” “[create] incentive[s] for states to change their laws, which will stop them from enforcing the law in an unjust manner,” and “[give] communities devastated by marijuana laws [the ability] to apply for reinvestment funds, to help pay for community centers, public libraries, youth centers, and other infrastructure and social needs.”

Notably, the law would withhold federal funds for law enforcement and prison construction for states that have a disproportionate percentage of minority and low-income individuals arrested for marijuana-related offenses and would create a reinvestment fund for communities most affected by the war on drugs, with grants in areas such as job training, expenses related to the expungement of convictions, public libraries and health education programs.

Whether rooted in progressivism or simply political ambitions for 2020, Senator Booker’s Marijuana Justice Act (which has yet to have a co-sponsor) will face an uphill battle in Congress, despite public support for legalization being at an all-time high.  Indeed, notwithstanding its populist appeal, this legislation would leave unanswered a whole host of questions, such as whether the U.S. government would play any role in the regulation of marijuana at the federal level or would leave regulation of marijuana entirely up to the states?  What about states which do not yet have their own regulatory framework?   What type of marijuana convictions would qualify for expungement?

It is unlikely that these questions will ultimately be answered with the current legislation, but the Marijuana Justice Act could open up further debate about whether marijuana should be declassified as a Schedule I drug under the CSA, which would potentially open doors to medical marijuana research and banking services for those in the marijuana industry.

A federal judge from the U.S. Northern District of Illinois recently ruled that an Illinois state law banning (i) medical cannabis cultivation centers and dispensaries from making campaign contributions to any political committee established to promote a candidate for public office, and (ii) candidates and political committees from receiving such contributions, violated the First Amendment of the U.S. Constitution.  The court took the position that because the law singles out medical cannabis organizations, it is another way of restricting or discriminating against content of speech or a particular viewpoint.  This ruling is timely in that Illinois lawmakers have recently introduced bills in the both the IL House and Senate to make it legal for adults 21 and older to possess, grow, and purchase limited amounts of marijuana for medical or recreational use.  The Marijuana Policy Project, a national advocacy group, believes that “[b]y regulating adult use, the state can generate much-needed revenue for the state budget, replace the underground market with regulated businesses, and allow law enforcement to focus on serious crime.” A potential win-win all around.

Now that Massachusetts has voted to legalize the recreational use of marijuana, employers that want to maintain drug-free workplaces, the new marijuana law raises a number of questions regarding employer rights and obligations.  In this client alert, we identify a number of issues facing employers in the wake of this new law and offer our initial reactions and insights.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/MA111416-LE

Golden State voters trail-blazed the way for the legalized use and sale of marijuana on November 8, 2016. The California Marijuana Legalization Initiative, known as Proposition 64, was welcomed with open arms (and maybe a little cotton mouth) by the nation’s largest economy with a vote of 56% in favor of the law. Continue Reading California High on Proposition 64’s Recreational Marijuana Law