Last week, voters in seven states passed new laws relating to marijuana use, both recreational and medical, which has left many employers wondering what this means to them. Can employers still enforce “zero tolerance” drug use policies? Do they have to allow employees to use marijuana in the workplace or during work hours, if they have a medical prescription? Some, but not all, state marijuana laws include specific provisions guiding employers in their handling of these issues. Take, for example, two of the laws passed last week, in Florida and Nevada.
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Florida Medical Marijuana Initiative
Florida’s new medical marijuana law passed with an overwhelming majority (71% voted “yes”) and goes into effect on January 3, 2017. This legislation amended the state constitution, to allow individuals with either specified diseases or some “other debilitating medical conditions of the same kind or class as or comparable to those enumerated” to use marijuana as prescribed by a licensed state physician. The Amendment also requires Florida’s Department of Health to “register and regulate centers that produce and distribute marijuana for medical purposes” and “issue identification cards to patients and caregivers.” The amendment expressly does not immunize individuals from violations of federal law or allow for any non-medical use, possession, or production of marijuana. It also does not permit the operation of a vehicle while under the influence of marijuana. The new regulations will be implemented by July 3, 2017 and the Department of Health is required to begin issuing identification cards by October 3, 2017.
The amendment also provides guidance to employers, by including a provision clarifying that employers are not required to accommodate any medical use of marijuana at the worksite (Article X, Section 29(c)(6)). While such a provision is helpful, it still leaves many questions unanswered. For example, can an employer still enforce a zero tolerance policy for being under the influence of marijuana while at work, even if that employee has a medical prescription? What about pre-employment drug screenings – do employers need to provide special accommodations for those prescribed medical marijuana?
Nevada’s Regulation and Taxation of Marijuana Act
Nevada, on the other hand, passed a recreational marijuana use law. The new law allows individuals of the age 21 and older to use or possess up to 1 ounce of marijuana and possess or cultivate up to 6 marijuana plants. It also authorized and regulated marijuana dispensaries, cultivation, manufacturing, and testing facilities, and distributors, and created a 15 percent excise tax. The new law is effective January 1, 2017, and Nevada will begin receiving applications for marijuana establishments by January 1, 2018.
The law provides more helpful guidance to employers, by expressly not requiring employers to permit or accommodate recreational use of marijuana. It also permits employers to enact and enforce workplace policies which restrict the consumption of marijuana by employees. Among other things, the law also expressly does not permit the operation of motor vehicles while under the influence of marijuana or the undertaking of any task while under the influence of marijuana that constitutes negligence or professional negligence.
The Bigger Picture
As the new laws in Nevada and Florida demonstrate, the issues faced by employers by the passage of recreational medical marijuana laws are a bit simpler than those presented by medical marijuana laws. Even if recreational marijuana use is lawful, it generally will not impact an employer’s right to enforce zero tolerance drug use policies in the workplace. More nuanced issues are presented by medical marijuana laws, which will necessarily have employers asking questions about the levels to which they must accommodate such usage and influence. Of course, to further complicate matters, marijuana is still illegal under federal law, whether for medical or recreational use. In the past, the federal government has refused to legalize marijuana use or possession, for any purpose, but has taken a “hands-off” approach in those states with state laws permitting such use and possession, but it is unclear whether this approach will change under the new administration taking office in January. In any event, employers in states where new marijuana laws were passed last week are encouraged to review their workplace policies related to drug use and screenings, and to seek the guidance of experienced employment counsel to ensure compliance with the new laws.