Seyfarth Synopsis: Yearly, employers discover themselves revisiting their marijuana and drug testing insurance policies to account for newly enacted legal guidelines on the state and native stage. Now could be no completely different. Under are some highlights of what occurred in 2021.
Connecticut
On June 22, 2021, Connecticut legalized leisure marijuana use by adults 21 years and older. Though provisions regarding possession are efficient now, the employment-related provisions aren’t efficient till July 1, 2022. At the moment, many employers shall be prohibited from taking sure actions within the absence of clear insurance policies addressing marijuana use or proof of impairment. With a transparent and compliant coverage, employers can, amongst different issues, prohibit staff from being beneath the affect of, utilizing or possessing marijuana whereas they’re working and whereas performing their job duties or on firm premises. If an employer has in place or implements a coverage that prohibits worker use or possession of marijuana and, such coverage is made accessible to staff prematurely, the employer can take motion towards an worker who makes use of leisure marijuana or assessments optimistic for it as a part of affordable suspicion and random drug testing. Within the case of a job applicant, an employer can rescind a job supply if an applicant assessments optimistic for leisure marijuana as long as the employer makes the coverage accessible to the applicant on the time of supply.
There are quite a few positions and industries exempt from the legislation. And naturally, employers nonetheless have to be conscious of the state legislation protections at present accessible to medical marijuana customers.
New Mexico
On April 12, 2021, New Mexico noticed the legalization of leisure marijuana. Whereas the legislation doesn’t present employment protections to leisure customers and, in reality, expressly affords a number of protections to employers, medical marijuana customers have sure protections beneath present state legislation.
New Jersey
The “New Jersey Hashish Regulatory, Enforcement Help, and Market Modernization Act,” which was signed on February 22, 2021, obtained fairly a little bit of consideration from employers largely as a result of it arguably prohibits employers from rejecting a job applicant who assessments optimistic for marijuana (until a slender exception exists, similar to positions topic to Half 40 DOT-mandated drug testing).
Whereas the brand new legislation, amongst different issues, permits employers to check present staff for marijuana, the legislation limits an employer’s capability to depend on a optimistic marijuana take a look at end in making employment choices. Particularly, topic to very slender exceptions, New Jersey employers might not refuse to make use of or in any other case discriminate towards an worker who makes use of marijuana or based mostly solely on a optimistic take a look at consequence for marijuana metabolites, which successfully signifies that an employer can take motion provided that the worker is impaired by marijuana at work. On this level, employers should develop sure processes earlier than counting on an inexpensive suspicion drug take a look at, together with conducting bodily evaluations and designating a “Office Impairment Recognition Professional” (WIRE) who have to be educated to detect and determine an worker’s use or impairment from medication and to help within the investigation of office accidents. As we beforehand wrote, the Hashish Regulatory Fee has not launched rules regarding the WIRE (however is anticipated to) and has suspended the requirement for the bodily examination.
New York
New York’s leisure marijuana legislation, authorised on March 30, 2021, additionally obtained plenty of consideration as a result of it prohibits employers from taking any motion towards somebody for utilizing leisure marijuana when not working and, thus, arguably restricts the flexibility of an employer to contemplate a optimistic pre-employment marijuana take a look at consequence (absent an exception).
Employers can nonetheless preserve drug-free workplaces, aren’t required to accommodate the use, possession, sale, or switch of marijuana within the office, and should prohibit staff from being impaired throughout work hours. Nonetheless, the legislation prohibits employers from refusing to rent, make use of, or license, or to discharge from employment or in any other case discriminate towards a person due to a person’s authorized use of consumable merchandise or authorized leisure actions, which now consists of marijuana in accordance with state legislation. The legislation revised New York Labor Legislation to ban employers from discharging or discriminating towards an worker for using marijuana outdoors of labor.
Employers can solely take employment actions based mostly on opposite federal and state authorized necessities (e.g., Half 40 DOT) and federal contracts. Employers can also terminate an worker based mostly on “particular articulable signs” of marijuana impairment that “intrude(s) with an employer’s obligation to offer a protected and wholesome office, free from acknowledged hazards.” The New York Division of Labor just lately reminded employers in its “Frequently Asked Questions” {that a} optimistic marijuana take a look at doesn’t show impairment at work and, thus, burdened the significance of defensible affordable suspicion testing insurance policies and practices.
Philadelphia
Most Philadelphia employers at the moment are prohibited from requiring potential staff to endure testing for the presence of marijuana as a situation of employment. At present, solely New York City and Nevada have related marijuana testing restrictions.
Exceptions apply to, amongst others, any place requiring a business driver’s license, positions requiring the supervision or care of youngsters, medical sufferers, disabled or different weak people, or security delicate positions, as decided by the enforcement company and set forth in rules pursuant to the ordinance. It additionally doesn’t apply to: any federal or state statute, regulation, or order that requires drug testing of potential staff for functions of security or safety; any contract between the federal authorities and an employer or any grant of monetary help from the federal authorities to an employer that requires drug testing of potential staff as a situation of receiving the contract or grant; or any candidates whose potential employer is a celebration to a sound collective bargaining settlement that particularly addresses the pre-employment drug testing of such candidates.
Virginia
Virginia addressed each leisure marijuana and hashish oil. With respect to leisure marijuana, a brand new legislation permits these 21 years of age or older to own or use recreationally. Retail gross sales is not going to start till January 1, 2024. The legislation doesn’t immediately tackle drug-free workplaces, although it acknowledges that marijuana causes impairment and prohibits driving whereas beneath the affect of marijuana.
Virginia additionally amended the state’s medical marijuana legislation to ban discrimination towards lawful customers of medical hashish oil (as outlined within the legislation). Employers might not discharge, self-discipline, or discriminate towards an worker for his or her lawful use of hashish oil pursuant to a sound written certification issued by a practitioner for the remedy or to eradicate the signs of the worker’s recognized situation or illness pursuant to the state’s hashish oil legislation. There are a handful of slender exceptions.
Takeaways for Employers
Many states are contemplating enacting new or amending present legal guidelines to offer employment protections to marijuana customers, which may end in 2022 additionally being one other busy 12 months on this space. With public and legislative assist for marijuana rising, employers with drug testing insurance policies might elect to revisit their views about marijuana, particularly in the event that they discover it tough to recruit and rent gifted staff or they don’t make use of safety-sensitive or different regulated positions.
Regardless, all employers with drug and alcohol testing packages ought to think about a recent evaluation of their insurance policies to resolve whether or not they’ll proceed to check for marijuana and, in that case, the circumstances beneath which assessments will happen and the implications for failed drug assessments. Notably, some states, together with Connecticut, Maine, Iowa, and Minnesota (amongst others) have drug testing statutes with coverage necessities. Employers additionally ought to think about coaching their managers and supervisors to make and doc affordable suspicion determinations to allow them to defend any actions taken based mostly on optimistic marijuana assessments.
Lastly, counting on state incapacity discrimination legal guidelines, medical marijuana customers are submitting lawsuits towards employers for failure to accommodate and incapacity discrimination, which seem like gaining traction. Thus, employers ought to think about having in place a transparent coverage and process for addressing lodging requests from candidates and staff utilizing medicinally.
