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.

 

As previously reported, Oklahoma’s medical marijuana laws dictate that an employer cannot discriminate against a person in hiring or termination, or otherwise penalize a person due to the person’s status as a medical marijuana holder or as a result of a positive drug test. So now that Oklahoma has gone green and created such limitations on employers, how will that impact employer drug testing policies?

To put it bluntly, nothing in the new law seems to specifically prevent or impact the general testing statute which allows for random testing. As an initial matter, to have any protections under the new law, an employee needs to have a medical marijuana license; thus, without the license employees are not protected.

Second, while the law states that an employee cannot be terminated simply because he or she possesses a medical marijuana card or because he or she tests positive for marijuana in a drug screen, the law does not prevent employers from taking into consideration other factors such as any negligent work behavior or bad performance, any injuries the employee has caused in the workplace, or what type of work is being performed. With that said, employers who choose to follow this path, are in for a hazy ride. If employers refuse to hire an applicant or choose to terminate or otherwise penalize a pot-licensed employee, the employer puts itself in the difficult position of having to prove that the employer is not relying solely on the test results when making employment decisions.

Third, as previously reported, while the new law provides a carve out for employers – an employer may take action against an employee if it stands to lose a monetary or licensing benefit as a result of employee usage, if federal laws prohibit use of drugs (“DOT”), and if the license holder “uses” or “possesses” marijuana while at work or during hours of employment – the challenge with this statute and other similar ones is proving “use” while at work. Use is difficult to prove because drug tests do not show when employees use marijuana or are under the influence of marijuana. It’s possible that a drug test could show up positive but be as a result of an employee’s off-duty use of marijuana.

Lastly, nothing in the law discusses whether a collective bargaining agreement may waive any rights in the new law. The Oklahoma general testing law does expressly state that any CBA must have basic protections. However, it is still unclear whether a Union can waive the protections in the law in a CBA.

Accordingly, while nothing in the new law seems to prevent or impact the general testing statute, employers should review their drug-testing policies to ensure compliance with the new laws. And of course, marijuana remains an illegal drug under federal law—so there may be potential preemption issues when it comes to testing.

On June 14, 2018, the Vermont Attorney General released its “Guide to Vermont’s Laws on Marijuana in the Workplace,” which can be found here. The Guide is aimed at assisting Vermont employers in navigating the state’s new recreational marijuana law, although it also addresses the state’s medical marijuana law, disability discrimination law, and drug testing law. Continue Reading Vermont Attorney General Releases “Marijuana in the Workplace” Guidance

On November 8, 2016, Maine voters approved “Question 1 – An Act to Legalize Marijuana” (“the Act”), which allows for, among other things, the recreational use of marijuana. The Act contains within it an anti-discrimination in employment provision, which is effective today, February 1, 2018, making it the first law of its kind in the nation because it protects employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.
Continue Reading Maine Employees Now Protected From Repercussions of Off-Duty Marijuana Use

On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual’s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies. Continue Reading Is Medical Marijuana A Reasonable Accommodation? Mass. Court Says … Possibly

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

HARRISBURG – Pennsylvania officials said Wednesday that they will begin accepting applications early next year for medical marijuana growers and dispensaries, with a target date of mid-2018 for legal sales to begin in the state.

How can banks in Oregon improve their reputation? Serve cannabis clients. That’s the finding of a survey by Portland-based LT Public Relations and DHM Research that suggests financial institutions could better their public standing by providing financial services to marijuana businesses.

On election day, voters in California, Massachusetts, Maine and Nevada decided to legalize the use of recreational marijuana, joining Alaska, Colorado, Oregon, Washington and the District of Columbia.  What does this mean for employers?

Okay, we’re going to toot our own horn here, among those interviewed for this article is our editor, Stan Jutkowitz.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

It was 1911. The New England Watch and Ward Society (née the New England Society for the Suppression of Vice) was battling against drugs and other “special evils.” And in April of that year, the group’s leaders successfully petitioned the Massachusetts Legislature to outlaw possession of several “hypnotic drugs,” including cannabis.

One hundred five years, seven months, and 16 days later — Thursday — marijuana became legal again in Massachusetts.

Changing marijuana laws aren’t necessarily making weed more welcome in the workplace. For now, many employers appear to be sticking with their drug testing and personal conduct policies, even in states where recreational marijuana use is now permitted.

The U.S. Drug Enforcement Administration has introduced a new rule on how it tracks marijuana extracts that is causing concern in the marijuana industry. But should it?

Something we missed that everyone needs to know?  Give us a shout in the comments.

Ohio Governor Kasich’s presidential campaign went up in smoke.  So did his opposition to marijuana legalization in the medical context when he recently signed into law Ohio’s Medical Marijuana Act (“OMMA”).  He went from unartfully quibbling with Stephen Colbert about marijuana’s “problem” despite seemingly not being harmed by his own admitted usee to making Ohio the 26th state to enact medical-marijuana legislation.  (To read more about the medical marijuana laws in Pennsylvania, New York, Connecticut, and New Jersey, please see our articles here and here).  But there is no smoke or fire in OMMA, both literally in the sense that smoking remains a banned form of consumption, and metaphorically for employers who wish to continue to treat marijuana as a banned substance in the workplace.

OMMA goes into effect in early September.  Under the law, individuals diagnosed with a “qualifying medical condition,” who have registered with the State Board of Pharmacy are permitted to use certain forms of medical marijuana for medicinal purposes.  As mentioned above, do not expect Harold and Kumar to have smoke billowing from their car at a White Castle drive-thru any time soon though, as OMMA explicitly prohibits smoking or other combustion of pot.  Rather, patients are only permitted to use oils, tinctures, plant materials, edibles, patches, or any other form approved by the State Board of Pharmacy, including vaporization. Continue Reading No Smoke or Fire in New Ohio Medical Marijuana Act

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