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Medical Marijuana in Your Suitcase? How One Basketball Player’s Conviction Raises Concerns for Employers

On October 25, 2022, U.S. professional basketball player Brittney Griner lost her bid in a Russian appeals court to overturn a nine-year sentence for attempting to smuggle illegal drugs into Russia. According to reports, Griner, a Women’s National Basketball Association star and two-time Olympic gold medalist, was arrested at a Russian airport in February 2022 while attempting to enter the country to play professional basketball with vaporizer cartridges containing less than one gram of hashish oil, a product derived from marijuana. Griner reportedly has a prescription for medical marijuana in Arizona, but marijuana, including medical marijuana, remains illegal in Russia.

Diana J. Nehro New York
Boston Author

Zachary V. Zagger New York Author

Claudia P. Martorell San Diego Author

Maryland and Missouri Pass Recreational Marijuana, Missouri Adds Medical Marijuana Cardholder Employment Protections

On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders.

M. Tae Phillips Birmingham Author

Zachary V. Zagger New York Author

Colorado Voters Pass Proposition to Allow Regulated Use of Psychedelic Mushrooms

On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older.

Roger G. Trim Denver Author

Zachary V. Zagger New York Author

Colorado Voters to Consider Legalization of Psychedelic Mushrooms

On November 8, 2022, voters in Colorado will vote on whether to legalize psychedelic mushrooms and other naturally occurring psychedelic drugs through a ballot initiative. Proposition 122, or the “Natural Medicine Health Act of 2022,” would decriminalize psychedelics and require the state to establish a regulated system for accessing psychedelics by those 21 years of age or older.

Roger G. Trim Denver Author

Zachary V. Zagger New York Author

Legalized Cannabis in Missouri: What Employers Need to Know

On November 8, 2022, Missouri voters will have the chance to legalize recreational marijuana. The proposed state constitutional amendment, dubbed Amendment 3, would revise and amend the existing provisions regarding the legalization of marijuana for medical purposes, as well as allow individuals aged twenty-one years old and older to legally possess, purchase, consume, and cultivate marijuana recreationally.

Daniel Patrick Johnson Kansas City Author

Jordan Kurdi Kansas City Author

Governor Newsom Signs Law Protecting Employees’ Off-Duty Marijuana Use

Beginning on January 1, 2024, California employers will be prohibited from discharging employees or refusing to hire individuals based on their off-duty use of marijuana.

Christopher W. Olmsted San Diego Author

New Jersey Cannabis Regulatory Commission Releases Interim Drug Testing Guidance

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued long-awaited interim guidance to employers regarding the use of a Workplace Impairment Recognition Expert (WIRE) to “detect[] and identify[] an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.” In addition, the NJ-CRC also released a template “Reasonable Suspicion Observed Behavior Report” form that employers may, but are not required to, use in connection with workplace drug testing.

Mark Diana Morristown Author

Steven J. Luckner Morristown Author

Michael J. Riccobono Morristown Author

California Passes Bill Protecting Employees’ Off-Duty Marijuana Use

California employers may soon be barred from discharging employees or refusing to hire individuals based on their off-duty use of marijuana, under a new bill headed to the governor’s desk. On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which would prohibit employers from discriminating against “a person in hiring, termination, or any term or condition of employment” based on “the person’s use of cannabis off the job and away from the workplace.”

Christopher W. Olmsted San Diego Author

M. Tae Phillips Birmingham Author

Zachary V. Zagger New York Author

Nevada High Court Rules Recreational Marijuana Is Not ‘Lawful Off-Duty Conduct’

In a decision issued on August 11, 2022, the Nevada Supreme Court declined to recognize recreational marijuana use as a “lawful” activity for purposes of the state’s law providing employment protections for “lawful activities” or “lawful off-duty conduct” outside of work.

M. Tae Phillips Birmingham Author

Suzanne L. Martin Las Vegas Author

Zachary V. Zagger New York Author

The Latest in Multi-Jurisdictional Marijuana Compliance

Legalization of medical and recreational marijuana use continues to spread across the United States despite the drug remaining a Schedule I controlled substance under federal law. This comes as respondents to Ogletree Deakins’ recent survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, indicated that keeping up with marijuana laws is already one of the most challenging areas of multi-jurisdictional compliance for employers.

M. Tae Phillips Birmingham Author

Zachary V. Zagger New York Author

Minnesota Legalizes the Consumption of THC Edibles—How Can Multistate Employers React to This Growing National Trend?

On June 2, 2022, Minnesota Governor Tim Walz signed House File (H.F.) 4065 into law, a measure that provides clarity regarding hemp-derived consumables stemming from the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill.

Brent D. Kettelkamp Minneapolis Author

Colin H. Hargreaves Minneapolis Author

Connecticut Update: Recreational Marijuana, Captive Audience Meetings, and Leave Notices Requirements Take Effect July 1, 2022

The Connecticut legislature has been busy in 2021 and 2022. Approximately twelve months ago, it passed legislation effectively legalizing recreational marijuana under Connecticut state law. Very recently, it amended Connecticut’s employee free speech statute to, among other things, prohibit employers from convening what organized labor often refers to as “captive audience meetings” with employees to address unionization efforts. Also, effective January 1, 2022, many employees became eligible for Connecticut Paid Family and Medical Leave benefits, and the legislature amended the Connecticut Family and Medical Leave Act (CTFMLA) to apply to almost all private sector Connecticut employers.

William C. Ruggiero Stamford Author

Chelsea R. Sousa Stamford Author

MSHA Accident Investigation Reports: Should They Tell the Whole Story?

Several years ago, we helped a mine operator through a difficult accident investigation. During the investigation, a toxicology report was received that indicated the presence of a narcotic in the victim’s bloodstream. There was a great deal of debate with the Mine Safety and Health Administration (MSHA) about whether the amount identified could have impaired the victim’s motor skills and judgment, possibly contributing to the accident.

William K. Doran Washington D.C. Author

Margaret S. Lopez Washington D.C. Author

Excusing False Positive Drug Test Caused by CBD Use May Be a Reasonable Accommodation, Says U.S. District Court in Louisiana

A federal district court in Louisiana, in Huber v. Blue Cross & Blue Shield of Florida, Inc., recently denied an employer’s motion for summary judgment in an Americans with Disabilities Act (ADA) and Louisiana Employment Discrimination Law (LEDL) case, finding, among other things, that accounting for and excusing a false positive drug test resulting from extended cannabidiol (CBD) use may be a reasonable accommodation.

Andrew P. Burnside New Orleans Author

Claire R. Pitre New Orleans Author

Benchmarking Survey Provides Insight Into Employers’ Drug Testing Practices in Response to Hiring and Retention Challenges

The last few years have provided numerous reasons for employers to reevaluate drug testing practices—from the rapid development of job protections for medical and recreational marijuana use, to the increase in drug testing-based litigation, to pandemic-related remote work, to staffing challenges. Ogletree Deakins’ April 2022 report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, provides a sense of how many employers are changing their drug testing practices and the kinds of changes they are making.

Michael Clarkson Boston Author

California Bill Proposes to Prohibit Employment Discrimination Against Marijuana Users

A bill recently introduced in the California Assembly proposes to prohibit discrimination against employees who use cannabis off the job. The legislation, Assembly Bill (AB) No. 2188, would amend California’s employment antidiscrimination law, the Fair Employment and Housing Act (FEHA), and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.”

Christopher W. Olmsted San Diego Author

DOJ Emphasizes Need for Individualized Assessments in Finding Indiana Nursing Board Violated ADA

On March 25, 2022, the U.S. Department of Justice (DOJ) found the Indiana State Board of Nursing violated Title II of the Americans with Disabilities Act (ADA) when it refused to allow a nurse taking medicine prescribed to treat opioid use disorder (OUD) from participating in the Indiana State Nursing Assistance Program (ISNAP).

Kenneth B. Siepman Indianapolis Author

Mississippi Approves Medical Marijuana: What a Long, Strange Trip It’s Been

Rarely are we able to combine the Grateful Dead and Mississippi in the same sentence, but the band once said, what a long strange trip it’s been.

M. Tae Phillips Birmingham Author

Philadelphia Ban on Pre-Hire Marijuana Testing Takes Effect on January 1, 2022

On January 1, 2022, Philadelphia’s ordinance, titled, “Prohibition on Testing for Marijuana as a Condition for Employment,” Phila. Code § 9-5500, et seq., will take effect. The ordinance—which was passed by the Philadelphia City Council on April 22, 2021, and signed into law by Mayor Jim Kenney on April 28, 2021—states that in the City of Philadelphia it “shall be an unlawful employment practice for an employer, labor organization, employment agency or agent thereof” to require a prospective employee to submit to pre-employment marijuana testing as a condition of employment.

Donald D. Gamburg Philadelphia Author

Iowa Supreme Court Examines Private Sector Drug-Free Workplaces Statute

Since it was passed in 1998, Iowa’s Drug-Free Workplaces Act has been one of the most comprehensive and complex drug-testing statutes in the United States. On June 25, 2021, the Iowa Supreme Court issued a pair of decisions—Dix v. Casey’s General Stores, Inc. and Woods v. Charles Gabus Ford, Inc.—that provide an in-depth analysis of the requirements that Iowa’s drug testing statute impose on employers and the level of compliance that employers must achieve to conduct enforceable testing.

Christine Bestor Townsend Milwaukee
Chicago Author

Jesse R. Dill Milwaukee Author

New Jersey Cannabis Regulatory Commission’s Rules and Regulations for CREAMMA Are Here: What Employers Need to Know

As we previously reported, on February 22, 2021, Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), which, among other things, legalized the recreational use of marijuana in New Jersey for adults age 21 and older. In addition, CREAMMA imposed on employers certain obligations with respect to marijuana and the workplace, including certain antidiscrimination and drug testing provisions.

Mark Diana Morristown Author

Steven J. Luckner Morristown Author

Michael J. Riccobono Morristown Author

Pennsylvania Court Holds Medical Marijuana Act Allows Employees to Sue for Discrimination

On August 5, 2021, the Superior Court of Pennsylvania held for the first time that Pennsylvania’s Medical Marijuana Act (MMA) allows an employee to sue his or her employer for taking an adverse employment action based on the employee’s status as a certified user of medical marijuana.

Donald D. Gamburg Philadelphia Author

Virginia’s Recreational Marijuana Legislation and New Employee Medicinal Use Protections

On April 21, 2021, Virginia Governor Ralph Northam signed into law House Bill No. 2312 and Senate Bill No. 1406, moving the date of recreational marijuana legalization in Virginia up to July 1, 2021. The legalization movement, which has increased in momentum in the Commonwealth since Democrats gained a majority in the legislature, culminated in February 2021, when the General Assembly passed recreational legalization measures with an effective date of January 2024.

J. Clay Rollins Richmond Author

Scott A. Siegner Richmond Author

Alabama Legislature Approves Medical Marijuana: Roll Tide! (and a Joint?)

On May 6, 2021, the Alabama legislature approved a medical marijuana legalization bill. Senate Bill (SB) 46, more commonly known as the Darren Wesley ‘Ato’ Hall Compassion Act, will now go to Governor Kay Ivey for final approval. Governor Ivey has not indicated that she will veto the bill, although a spokesperson for Governor Ivey has stated that she “look[s] forward to thoroughly reviewing it.”

M. Tae Phillips Birmingham Author

Marijuana Laws Affecting the Workplace: Tools Employers Can Use to Stay Ahead During High Times

States have been busy when it comes to marijuana laws. Before the mid-2010s, employers tended not to worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are over, and state marijuana legalization laws continue to affect how employers can run their workplaces.

M. Tae Phillips Birmingham Author

New York Legalizes Recreational Marijuana: Altered States for Employers

On March 31, 2021, New York Governor Andrew Cuomo signed into law the Marihuana Regulation and Taxation Act (MRTA), which legalizes the adult recreational use of marijuana and revises Section 201-d of the New York Labor Law. The MRTA’s antidiscrimination employment provisions took effect immediately.

Patrick M. Collins New York Author

Kelly M. Cardin New York
Stamford Author

Jessica R. Schild New York Author

Marijuana Legalization Update: Early 2021 Legislative Developments

In November 2020, voters in five states (Arizona, Mississippi, Montana, New Jersey, and South Dakota) voted in favor of legalizing medical and/or recreational marijuana. Since then, there have been several developments within the marijuana legalization world that employers may want to keep an eye on as they move forward in 2021.

M. Tae Phillips Birmingham Author

South Dakota Judge Nips Recreational Marijuana in the Bud: Holds Amendment A Unconstitutional

Last November, South Dakota voters approved Amendment A, which allowed for the recreational use of marijuana by individuals 21 years and older (and for possession of up to 1 ounce). On February 8, 2021, a South Dakota judge granted summary judgment in favor of law enforcement officers who filed a lawsuit on behalf of Governor Kristi Noem challenging Amendment A.

Michael Clarkson Boston Author

Recreational Marijuana Is Legal in New Jersey: What Employers Need to Know

On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other things, the 240-page measure legalizes the recreational use of marijuana for adults age 21 and older and—unfortunately for employers—places significant burdens on companies doing business in New Jersey with respect to marijuana and the workplace.

Mark Diana Morristown Author

Michael J. Riccobono Morristown Author

The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

Diane M. Saunders Boston Author

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