Tag Archives: Medical Marijuana

NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law

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The Vermont Attorney General recently issued the Guide to Vermont’s Laws on Marijuana in the Workplace, which provides employers with an overview of the changes to Vermont’s marijuana laws, and summarizes existing employment laws relating to drug testing in the workplace.

Vermont’s  recreational marijuana law legalized marijuana for recreational use starting July 1, 2018.  This new law left employers wondering what rights they had to control drug use within their workforce.  The new Guide clarifies that employers maintain certain rights with respect to employee drug use, including: Continue reading NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law →

NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

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On June 26, 2018, Oklahoma voters passed State Question 788, which legalizes marijuana use for medical purposes in Oklahoma.   With the passage of this ballot measure, Oklahoma became the 30th state to pass a medical marijuana law.

The new law goes into effect on July 26, 2018, and does have some implications for Oklahoma employers.  Specifically, the law prohibits employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result.

While the new law does prohibit employers from discriminating against medical marijuana license holders, employers are permitted to take action against a holder of a medical marijuana license holder if the holders use or possess marijuana while in the holder’s place of employment or during the hours of employment.

Take Home For Employers Continue reading NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana →

NEW LAW – Florida Passes Medical Marijuana Law

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Last November, Florida voters approved an amendment to the Florida constitution legalizing the use of marijuana for medicinal purposes. (see Impact of Florida’s New Medical Marijuana Law on Employers)

Under this amendment, the Florida legislature had until July 3, 2017 to implement regulations that provide guidelines on the implementation of the state’s Constitutional Amendment regarding medical marijuana. Last week, Florida Governor Rick Scott signed Senate Bill 8-A, which addresses the medical use of marijuana in Florida.

The constitutional amendment legalized the use of medical marijuana for persons with specific “qualifying conditions” including cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease, multiple sclerosis, chronic nonmalignant pain, and comparable medical conditions).

Under the new law, “medical use” does not include possession, use, or administration of marijuana that was not purchased or acquired from a medical marijuana treatment center.  In addition, the only permissible use of medical marijuana is consumption as edibles, vaping, oils, sprays or tinctures. The smoking of medical marijuana is not permitted under the law.

In addition, the new law includes some employer-friendly provisions:

  • The term “medical use” does not include use at a qualified patient’s place of employment, except when such use is permitted by his or her employer.
  • The law does not limit the ability of an employer “to establish, continue, or enforce a drug-free workplace program or policy.”
  • Employers are not required to “accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.”
  • Medical marijuana is not reimbursable under the Florida Workers’ Compensation Law.
  • The law “does not create a cause of action against an employer for wrongful discharge or discrimination.”

Recommendations for employers

It is recommended that Florida employers review their drug and alcohol policies to determine whether any revisions are required.

NEW LAW – West Virginia Medical Cannabis Act

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West Virginia employers – medical marijuana is now legal in West Virginia.

Under the newly enacted West Virginia Medical Cannabis Act, patients suffering from serious medical conditions (including cancer, ALS, HIV/AIDS, multiple sclerosis, Parkinson’s disease, epilepsy, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, sickle cell anemia, severe chronic or intractable pain, or certain spinal cord damage) are permitted to use marijuana for medicinal purposes.

Under the new law, employers are not required to accommodate the use of marijuana at work, and may discipline employees who are “under the influence” of marijuana at work. however, the new law does contain a broad anti-discrimination provision that prohibits employers from “discharging, threatening, refusing to hire or otherwise discriminating or retaliating against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.”

Despite this “anti-discrimination provision,” the law prohibits medical marijuana patients employed in certain “safety sensitive positions” from doing the following when under the influence of medical marijuana:

  • Operating or being in physical control of any of the following:
    • chemicals which require a permit issued by the federal government, state government, federal agency or state agency;
    • high-voltage electricity or any other public utility;
    • vehicle, aircraft, train, boat or heavy machinery;
  • Performing any employment duties at heights or in confined spaces, including, but not limited to, mining
  • Performing any duty which could result in a public health or safety risk

Recommendations

It is recommended that West Virginia employers review their drug and alcohol policies and consult with an HR Professional or qualified employment attorney to determine if their policies are compliant with the new law.

New Medical Marijuana Case Impacts Rhode Island Employers

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In a recent decision (Callaghan v. Darlington Fabrics Corp.), the Rhode Island Supreme Court has held that under Rhode Island law, an employer cannot refuse to hire a medical marijuana cardholder, even if the applicant admits during the interview that he/she will not be able to pass the employer’s mandatory pre-employment drug test.

The Case

In this case, the plaintiff had applied for a paid internship with Darlington Fabrics. During a meeting with the company’s Human Resources Coordinator, she informed the Human Resources Coordinator that she had a medical marijuana card. At this meeting, the plaintiff also signed Darlington’s Fitness for Duty Statement, acknowledging she would have to take a drug test prior to being hired.

In a subsequent conversation with the Human Resources Coordinator, the plaintiff was asked if she was currently using medical marijuana and the plaintiff responded “Yes.” The plaintiff then indicated that because of her medical marijuana use, she would test positive on her pre-employment drug screening.

In response, the Human Resources Coordinator informed the plaintiff that a positive drug test would “prevent the Company from hiring her.” The plaintiff then told the Human Resources Coordinator that she was allergic to many other painkillers and that she would neither use marijuana in or bring it to the workplace.

 

Following that conversation, the Human Resources Coordinator called the plaintiff and told her that the company was “unable to hire her.” The plaintiff sued the company under the Rhode Island medical marijuana law, the Hawkins-Slater Act, as well as the state’s disability discrimination statute, for refusing to hire her.

 

The Court’s Ruling

The ruling in this case centered on the Court’s interpretation of two separate provisions of the Hawkins-Slater Act:

“No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” 

and

“Nothing in this chapter shall be construed to require … [a]n employer to accommodate the medical use of marijuana in any workplace.”

Based on the above-quoted language, the Court found that the statute does, in some way, require employers to accommodate the medical use of marijuana outside the workplace. Specifically, the Court found that the Hawkins-Slater Act prohibits employers both from refusing to employ a person for his or her status as a cardholder, and also from refusing to hire an applicant because of his/her use of medical marijuana.

In practical application, the Court believed that by finding the action the company took (rejecting an applicant because she would be unable to pass the pre-employment drug test due to her medical marijuana use) was lawful, such a finding would void the protections afforded to medical marijuana users under the law because a patient who, by virtue of his or her condition, has to use medical marijuana once or twice a week in a worse position than a recreational user. The recreational user could cease smoking long enough to pass the drug test and get hired, and subsequently not be subject to future drug tests, allowing him or her to smoke recreationally to his or her heart’s content. The medical user, however, would not be able to cease for long enough to pass the drug test, even though his or her use is necessary to “treat or alleviate pain, nausea, and other symptoms associated with certain debilitating medical conditions.”

With respect to the plaintiff’s disability discrimination claim, the court held that discrimination could be shown “against a class of disabled people — namely, those people with disabilities best treated by medical marijuana.” It also held that medical marijuana users are able to bring a state law disability discrimination claim, despite that: (1) the law disclaims protections to those who seek remedies based on his or her illegal drug use; and (2) marijuana remains illegal under federal law.

Take home for employers

This new holding complicates things for Rhode Island employers who conduct drug testing for marijuana. An employee’s off-duty use of medical marijuana may cause the employee to test positive on a workplace drug test because marijuana may stay in the fatty tissues of the body for weeks. Rhode Island employers who conduct any form of drug need to consider the marijuana laws affecting their workplaces and how they will handle the question before an actual issue arises.

Impact of North Dakota’s New Medical Marijuana Law on Employers

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The North Dakota Compassionate Care Act is the newly passed medical marijuana law in North Dakota, which was approved by voters in the 2016 election.

This new law allows individuals with certain “debilitating medical conditions” to use medical marijuana to treat those conditions. Included in the list of “debilitating medical conditions” are cancer and its treatments, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), decompensated cirrhosis (Hepatitis C), amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease), post-traumatic stress disorder (PTSD), agitation of Alzheimer’s disease, dementia, or the treatment of these conditions, Crohn’s disease or Fibromyalgia, spinal stenosis or chronic back pain including neuropathy or damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, glaucoma, and epilepsy. In addition, individuals suffering from a chronic or debilitating disease medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe debilitating pain that has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side effects; intractable nausea; seizures; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis and/or any other medical condition or its treatment added by the North Dakota Department of Health” may legally use medical marijuana.

The new law goes into effect December 8, 2016.

The impact on employers?

Under the new law, North Dakota employers are not required to accommodate any “on-site medical use of marijuana” in any place of employment. However, the law does not address whether employers are required to extend reasonable accommodations to medical-marijuana-using applicants or employees who happen to have the drug in their system while on duty at work or submitting to a pre-hire drug test. It is recommended that employers develop a plan to handle these situations and then enforce that plan consistently.

In addition, the law also does not address the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Impact of Arkansas’ New Medical Marijuana Law on Employers

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The Arkansas Medical Cannabis Act is the newly passed medical marijuana law in Arkansas, which was approved by voters in the 2016 election.

This new law allows individuals with “qualifying medical conditions” to use medical marijuana to treat those conditions. Included in the list of “qualifying medical conditions” are arthritis, cancer, glaucoma, positive status for human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and multiple sclerosis. In addition, individuals suffering from “chronic or debilitating disease[s] that produce severe nausea,” intractable pain, seizures, severe and persistent muscle spasms, or any other medical condition approved by the Arkansas Department of Health may legally use medical marijuana.

The new law went into effect on November 9, 2016

The impact on employers?

With this new law, Arkansas created a new protected class around medical marijuana use. Under the new law, employers are prohibited from terminating an employee based on his/her medical marijuana use. In other words, an employer cannot fire an employee simply because he/she has a prescription to use medical marijuana. An employer can, however, terminate an employee for coming to work “high.” In addition, the new law does not require employers to accommodate an employee’s request to use medical marijuana in the workplace.

One thing the law does not address, however, is the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Impact of Florida’s New Medical Marijuana Law on Employers

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The Florida Medical Marijuana Legislation Initiative is the newly passed medical marijuana law in Florida, which was approved by voters in the 2016 election.

This new law allows individuals with certain “debilitating medical conditions” to use medical marijuana to treat those conditions. Included in the list of “debilitating medical conditions” are cancer, epilepsy, glaucoma, the human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and multiple sclerosis. In addition, individuals suffering from “other debilitating medical conditions of the same kind or class as or comparable” to this list, so long as a physician believes that the medical use of marijuana would “likely outweigh the potential health risks for a patient” may legally use medical marijuana.

The new law goes into effect January 3, 2017.

The impact on employers?

Under the new law, Florida employers are not required to accommodate any “on-site medical use of marijuana” in any place of employment. However, the law does not address whether employers are required to extend reasonable accommodations to medical-marijuana-using applicants or employees who happen to have the drug in their system while on duty at work or submitting to a pre-hire drug test. It is recommended that employers develop a plan to handle these situations and then enforce that plan consistently.

In addition, the law also does not address the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Is your state contemplating the legalization of marijuana?

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Presidential election aside, there is something else equally important to employers on certain electoral ballots. Eight states are contemplating legalizing marijuana either for medicinal purposes or for recreational purposes. Is your state one of the eight who are contemplating this change?

Medical Marijuana Laws

Currently 25 states and DC have laws legalizing the use of marijuana for medicinal purposes. On November 2, 2016, 3 more states will be subjecting their proposed medical marijuana laws to popular vote. Those states are: Arkansas, Florida, and North Dakota.

Should these laws pass, here is how they could impact employers:

  • Arkansas
    • Employers cannot deny a “qualifying patient” “any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for medical use of cannabis in accordance with [the law].”
    • Employers cannot discriminate against a “qualifying patient” “in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient.”
    • Employers will not be required to
      • accommodate the use of marijuana in the workplace
      • permit an employee to work while under the influence of marijuana.
  • Florida
    • Employers will not be required to permit the use of marijuana in the workplace
  • North Dakota
    • Employers will not be required to permit the use of marijuana in the workplace

Recreational Marijuana

In addition, four states and the District of Columbia have legalized marijuana for recreational use. On November 2, 2016, 5 more states will be subjecting their proposed medical marijuana laws to popular vote. Those states are: Arizona, California, Maine, Massachusetts, and Nevada.

Should these laws pass, here is how they could impact employers:

  • Arizona
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees
    • However, an employer cannot discipline an employee for an action solely because the employee tests positive for marijuana in a drug test
  • California
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees and drug free workplace policies
  • Maine
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees
    • However, employers cannot refuse to hire someone solely because that person used marijuana
  • Massachusetts
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees
  • Nevada
    • Employers will not be required to
      • Allow or accommodate the possession or use of marijuana in the workplace
      • Permit an employee to work while under the influence of marijuana.
    • Employers may still enact policies restricting the use of marijuana by employees

Employers in these states should watch the election results carefully and be prepared to make some alterations to their drug policies to ensure they are compliant with any new laws that might be passed.

How Ohio’s New Medical Marijuana Law Affects Your Workplace

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On June 8, 2016, Ohio Governor John Kasich signed House Bill 523 into law. This bill legalizes the use of marijuana for medicinal purposes in Ohio effective September 6, 2016.

While the legalization of marijuana for medicinal purposes is not new (25 other states have already legalized medical marijuana), Ohio employers are left wondering how the new law impacts their organization and their attempts to maintain a drug-free workplace.

Ohio employers can breathe a collective sigh of relief because the new law specifically shields employers and preserves drug-free workplaces in Ohio. Specifically, the new law clearly states that employers are not required to

  • Permit or accommodate an employee’s use, possession or distribution of medical marijuana;
  • Curtail adverse employment decisions (e.g. hire, discipline, demote, transfer, fire) against a person because of his/her use, possession or distribution of medical marijuana;
  • Modify the establishment or implementation of a drug-free workplace or zero-tolerance drug policy; or,
  • Alter in any manner compliance policies or actions regarding applicable U.S. Department of Transportation regulations.

In addition, the new law states that employees are not authorized to sue an employer for adverse employment action taken related to medical marijuana use. Finally, the law makes it clear that intoxication (including medical marijuana intoxication) is a defense to a claim for workers’ compensation benefits.

Recommended action for Ohio employers

In preparation for this new law, Ohio employers should review their drug policies to make sure those policies are updated to specifically address medical marijuana use.