It’s no secret that marijuana laws and court decisions are top of mind for employers as we cross the halfway point in 2019. Illinois, New Jersey and Oklahoma are now added to the list of jurisdictions employers must consider when drug testing applicants for marijuana use.
From an employer perspective, the Act continues protections for employers established under the Compassionate Use of Medical Cannabis Pilot Program Act of 2013 that allows employers to enforce drug free or zero tolerance workplace policies. This includes allowing employers to prohibit the use, possession or storage of cannabis on workplace property, or showing up to work under the influence. This includes for employees that are “on call” (meaning scheduled to be on standby with at least 24 hours’ notice).
Importantly, the law creates a system for automatic expungements for items classified as minor cannabis offenses. For marijuana-related convictions that do not meet the definition of a minor cannabis offense, there is also a path for individuals to petition and seek expungement of those records, or for the governor to grant pardons and order the expungement of this information.
Following that notice, the individual then has three working days to explain the positive test result or the individual may request a confirmatory retest (at his or her own expense). The individual may present an authorization for medical cannabis use, proof of registration as a qualifying patient or both.
Notably, the amended law does not restrict employers from prohibiting or taking adverse employment action based on the possession or use of intoxicating substances during work hours or on work premises (whether or not during work hours). Additionally, employers are not required to commit any act that would lead them to violate federal law.
The Act establishes parameters around the legal use of medical marijuana within the state. From an employer perspective, the Act prohibits employers from refusing to hire, disciplining, discharging or otherwise penalizing an applicant or employee based on: (i) the individual’s status as a medical marijuana licensee and (ii) a positive drug test for marijuana. With respect to the latter prohibition, employers may take action based on a positive drug test if: (i) the individual does not possess a valid medical marijuana license, (ii) the individual possesses, consumes or is under the influence of medical marijuana while on the employer’s premises or during working hours or (iii) the position is one involving safety-sensitive job duties.[1]
The Act makes clear that employers are not required to permit or accommodate the use of medical marijuana at the workplace or during working hours. Further, employers are not required to provide worker’s compensation benefits to reimburse individuals for costs associated with medical marijuana. Finally, employers may have written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act.
Illinois
Illinois passed the Cannabis Regulation and Tax Act which is an extensive piece of legislation (610 pages!). The law takes effect January 1, 2020.From an employer perspective, the Act continues protections for employers established under the Compassionate Use of Medical Cannabis Pilot Program Act of 2013 that allows employers to enforce drug free or zero tolerance workplace policies. This includes allowing employers to prohibit the use, possession or storage of cannabis on workplace property, or showing up to work under the influence. This includes for employees that are “on call” (meaning scheduled to be on standby with at least 24 hours’ notice).
Importantly, the law creates a system for automatic expungements for items classified as minor cannabis offenses. For marijuana-related convictions that do not meet the definition of a minor cannabis offense, there is also a path for individuals to petition and seek expungement of those records, or for the governor to grant pardons and order the expungement of this information.
New Jersey
Effective July 2, 2019, New Jersey issued important amendments to its state Compassionate Use Medical Cannabis Act. Importantly, the amended law now prohibits employers from taking adverse employment action against employees that are registered qualifying patients. This prohibition also impacts employer drug testing policies. For example, if an employee or a job applicant test positive for cannabis, the employer must first offer the individual an opportunity to present a legitimate medical explanation for the result along with written notice of that specific right. (See N.J. Stat. 24:6I-6.1).Following that notice, the individual then has three working days to explain the positive test result or the individual may request a confirmatory retest (at his or her own expense). The individual may present an authorization for medical cannabis use, proof of registration as a qualifying patient or both.
Notably, the amended law does not restrict employers from prohibiting or taking adverse employment action based on the possession or use of intoxicating substances during work hours or on work premises (whether or not during work hours). Additionally, employers are not required to commit any act that would lead them to violate federal law.
Oklahoma
In Oklahoma, HB 2612 was signed into law by Governor Kevin Stitt in March 2019 which created the Oklahoma Medical Marijuana and Patient Protection Act. The Act went into effect ninety days after the Governor’s signature.The Act establishes parameters around the legal use of medical marijuana within the state. From an employer perspective, the Act prohibits employers from refusing to hire, disciplining, discharging or otherwise penalizing an applicant or employee based on: (i) the individual’s status as a medical marijuana licensee and (ii) a positive drug test for marijuana. With respect to the latter prohibition, employers may take action based on a positive drug test if: (i) the individual does not possess a valid medical marijuana license, (ii) the individual possesses, consumes or is under the influence of medical marijuana while on the employer’s premises or during working hours or (iii) the position is one involving safety-sensitive job duties.[1]
The Act makes clear that employers are not required to permit or accommodate the use of medical marijuana at the workplace or during working hours. Further, employers are not required to provide worker’s compensation benefits to reimburse individuals for costs associated with medical marijuana. Finally, employers may have written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act.
[1] Employers should review the law’s definition of what exactly entails a “safety sensitive position”.