As the September 14, 2023, deadline to pass bills during the current session of the California Legislature fast approaches, the California Senate and Assembly are considering several employment law bills. Many are likely to pass. Below is a summary of some of the more significant bills.
The spread of state legalization of recreational and medical marijuana continues to create challenges for employers who seek to enforce drug-testing and drug-free workplace policies. Even in right-to-weed states that have enacted employment protections for lawful and off-duty marijuana use, employers are not required to permit employees to use marijuana in the workplace or to work while impaired by or under the influence of marijuana or other drugs. Here are some key points on the ways in which employers.
Although marijuana has been legalized for medicinal or recreational use, or both, in thirty-eight states, it is still illegal under federal law, and drug testing is required to comply with a number of federal laws, including the Motor Carrier Safety Act. In addition, the Occupational Safety and Health Administration does not prohibit workplace safety incentive programs or post-incident drug testing.
Employers in Washington will soon be prohibited from making hiring decisions based on preemployment testing for off-the-job cannabis use or test results showing nonpsychoactive cannabis metabolites in an applicant’s hair, blood, urine, or other bodily fluids. Washington’s new law, Senate Bill 5123, signed by Governor Jay Inslee on May 9, 2023, takes effect on January 1, 2024.
The Minnesota Legislature sent a recreational marijuana bill, House File 100, to Governor Tim Walz’s desk for his signature. Subject to various restrictions, the bill, allows individuals twenty-one years old and older to possess and transport various levels of cannabis products, consume cannabis in private/public areas, and grow it. Governor Walz is expected to sign the bill into law.
On May 2, 2023, the U.S. Department of Transportation (DOT) published a final rule amending its regulated industry drug testing program to allow for oral fluid testing.
Minnesota’s 2023 legislative session is off to a hot start and turning out to be an important one for Minnesota employers and companies doing business in Minnesota. Currently, there are four noteworthy bills that employers should keep an eye on as they progress through the Minnesota Legislature.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.”
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).
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.
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.
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.
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.
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.
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.
