The November 3 election saw voters in five states weighing in on new marijuana measures, and the results mean employers will need to be ready for more recreational use.
Voters in four states—Arizona, Montana, New Jersey, and South Dakota—voted in favor of measures allowing the recreational use of marijuana.
Medical in Mississippi
Mississippi voters voted to approve a medical marijuana program, but the issue is far from settled. There were two versions of the measure on the ballot, and although one was passed by voters, it may not result in a medical marijuana program.
“There is currently a legal challenge pending that questions whether the measure was even properly on the ballot,” Martin J. Regimbal, an attorney with The Kullman Firm in Columbus, Mississippi, says. “The governor has come out against the legislation, and even the Trump campaign previously issued a cease-and-desist letter demanding those campaigning for the law to stop quoting him in support.”
If the measure survives the legal challenge, it won’t go into effect until July 2021. “As of yet, there is no guidance on how it will impact employers or guidance on much else either, other than it being limited to medical use by those with debilitating and certain other conditions,” Regimbal says. The Mississippi Department of Health is tasked with issuing rules and regulations.
Arizona
Proposition 207, the Smart and Safe Arizona Act, legalizes possession and use of marijuana for adults 21 and older. It passed with nearly 60% voter approval, Jodi R. Bohr, an attorney with Tiffany & Bosco, P.A. in Phoenix, says.
“Although lengthy, the Act provides very little guidance to employers,” Bohr says. It states that it doesn’t restrict employers from maintaining a drug- and alcohol-free workplace or restricting the use of marijuana by employees, but it “does not make clear whether an employer’s restriction of marijuana use by employees is limited to preventing impairment while working or on a broader scope that encompasses an employee’s free time,” she says. It’s clear, however, employers may restrict marijuana-related activities in the place of employment, including offices, surrounding areas, and company vehicles.
Bohr says employers should review their drug and alcohol testing policies to ensure they comply with the Arizona drug testing statute and that policies are clear regarding use restrictions by employees.
The Act doesn’t modify an employee’s rights under Arizona’s Medical Marijuana Act (AMMA), which was passed in 2012, Bohr says. “How an Arizona court will interpret the AMMA is still very much up in the air, and Proposition 207 only adds to the uncertainty,” she says. “Employers can protect themselves by having comprehensive drug and alcohol policies and implementing training on the signs and symptoms of impairment.”
Montana
Montana residents voted in favor of Initiative 190, which legalizes the possession and use of limited amounts of marijuana for adults over 21. The measure stipulates that it allows employers to discipline employees for violating a workplace drug policy or working while intoxicated by marijuana.
“We anticipate fairly minimal change to Montana employers and no immediate change to current drug-free workplace policies,” Jason Ritchie, an attorney at Ritchie Manning Kautz PLLP in Billings, says.
Ritchie says employers should continue their drug-free workplace policies and testing procedures, and companies without such policies and procedures might consider adding them.
New Jersey
New Jersey residents voted in favor of New Jersey Public Question 1, the Marijuana Legalization Amendment. Jennifer Roselle, an attorney with Genova Burns LLC in Newark, says that if the final measure tracks the 2019 proposal, it will include a provision that expressly entitles employers to prohibit recreational use on their property or during work hours.
“We already see this prohibition in states with recreational use, and it already exists in New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act,” Roselle says.
“This is a great time for employers to review their policies and determine their goals in enforcing a drug-free workplace policy that doesn’t interfere with the employees’ rights outside the workplace or created by disability,” Roselle says.
South Dakota
The South Dakota Constitutional Amendment A, the Marijuana Legalization Initiative, legalizes recreational use for adults 21 and older. It allows individuals to possess or distribute up to 1 ounce of marijuana. Also on the ballot was Initiated Measure 26, which establishes a medical marijuana program.
The recreational use measure is slated to take effect July 1, 2021. Beth A. Roesler, an attorney with the Goosman Law Firm in Sioux Falls, South Dakota, says the amendment doesn’t prevent employers from having drug and alcohol policies. The medical marijuana measure stipulates that any qualifying patient has the same rights in the workplace as workers with prescription medication, she says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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