Last fall, we presented you with some of the changes in state marijuana laws and what implications they could have in the workplace (“Finding your way through the haze”). This spring, we debated whether medical marijuana could be covered under your company’s medical plans (“Medical marijuana”). In the few short months that have followed, we are seeing more legislation either allowing the use medical marijuana or legalizing the recreational use of cannabis. This recent flurry of activity begs the question, “Are all the marijuana prohibitions going up in smoke?”
As recent as June 25th, Illinois made history when it became the first state to approve legalizing marijuana legislatively. Why was this groundbreaking? When the state took action to regulate sales and decriminalize its use, the action was done not by a ballot initiative, but through legislation. While Vermont legalized adult possession and cultivation of marijuana in 2018, the state did not pass legislation for the regulation of sales. Essentially, ten states(and Guam) have passed laws regulating marijuana like alcohol: Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, and Washington. All but Illinois were passed by citizen ballot initiatives. It’s likely that Vermont’s S.54 and H.196 bills, which were passed by the state Senate, will be brought to the house in Spring 2020. Of note, numerous bills in Minnesota propose a constitutional amendment that would go before voters in 2020 to legalize adult use marijuana.
Twenty-five states and Washington, D.C. have decriminalized or legalized marijuana possession. In many cases a fine is now imposed in lieu of a jail sentence. New Mexico’s governor signed a bill from the legislature on April 3, 2019. North Dakota recently decriminalized cannabis, but imposes a hefty fine for possession. Hawaii will become the 26th state to decriminalize up to three grams of marijuana once HB 1383 becomes law through a pocket veto.
We reported that thirty-three states (plus Washington, D.C., Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin islands (January 17, 2019)have effective medical marijuana laws. Notably, Wisconsin, although it had budget bills to both decriminalize possession and allow medical marijuana, remains a hold out among the Midwestern states.
So what does this mean to employers? If you are a multi-state employer, having one comprehensive drug policy (especially as it relates to cannabis) is next to impossible. However, as David Flotten pointed out last fall, you, as an employer, do not need to tolerate employees who are under the influence or possess marijuana at work. Even if the state has recognized recreational marijuana or the employee holds a medicinal marijuana card — possession and being under the influence at work is still illegal and grounds for disciplinary procedures, including termination. Furthermore, even as the states legalize medicinal marijuana, health plans cannot cover it under their plans, as I wrote in March.
Our advice to employers is to keep apprised of the changing laws in the states where your employees work. Drug testing policies, among other procedures, may need to be altered. Consult with a legal or human resources advisor when an employee claims their marijuana usage is legal or if you are revising policies.
HR Hotline clients with specific questions on state marijuana laws can contact the Hotline for more information.
Marybeth offers pragmatic solutions to employers on complex compliance and risk issues. She provides guidance to employers in a variety of industries, focusing on compliance, risk management and business planning. She has extensive experience in health, insurance, and Indian law.
Marybeth offers pragmatic solutions to employers on complex compliance and risk issues. She provides guidance to employers in a variety of industries, focusing on compliance, risk management and business planning. She has extensive experience in health, insurance, and Indian law. Prior to joining Associated Benefits and Risk Consulting in 2018, she was in-house counsel for various Metro-Milwaukee companies. She is a frequently requested speaker at health law conferences and a fervent mental health advocate.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
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