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.
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.
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.
Employers can expect an active 2021 Connecticut General Assembly since the 2020 legislative session was cut short. (The session lasted a little over a month before it was suspended on March 12, 2020, due to the pandemic and then officially adjourned on May 6, 2020.)
We would all be excused for wanting 2020 to disappear in a fog of medical marijuana. In case you missed it, here’s a recap of a very busy year for Ogletree Deakins Drug Testing Practice Group.
In November 2020, the Common Council for the City of Madison, Wisconsin, passed ordinances decriminalizing the possession and use of small amounts of cannabis or cannabis derivatives within city limits.
In Harrisburg Area Community College v. Pennsylvania Human Relations Commission, No. 654 C.D. 2019, (October 29, 2020), the Commonwealth Court of Pennsylvania recently examined the interaction between Pennsylvania’s Medical Marijuana Act (MMA) and the Pennsylvania Human Relations Act (PHRA). Specifically, the court addressed whether the PHRA’s prohibition against disability discrimination required a college to accommodate a student’s lawful use of medical marijuana under the MMA.
Oregon voters approved two groundbreaking measures in the 2020 election season to become the first state in the nation to decriminalize personal possession of small amounts of certain controlled substances (Measure 110) and legalize the therapeutic usage of psilocybin in a controlled therapy setting (Measure 109). Many employers may be wondering what these measures mean and how their workplaces and existing employment policies might be impacted.
On November 3, 2020, five states had initiatives on the ballot to legalize the recreational and/or medical use of marijuana, and all five initiatives easily passed. Arizona, Montana, and New Jersey voted in favor of legalizing the possession and recreational use of marijuana for adults aged 21 years and older. In addition, South Dakota became the first state to legalize both medical and recreational marijuana at the same time. Mississippi voted to legalize medical marijuana. Employers may want to consider the impact of these new laws, as well as watch for new developments.
On November 3, 2020, Arizona voters decisively approved Proposition 207, the Smart and Safe Arizona Act, to legalize recreational marijuana. As a result of the election, both medical and recreational marijuana are officially legal in Arizona.
On September 25, 2020, the U.S. District Court for the Eastern District of Pennsylvania became the first federal court in the Third Circuit to rule that Pennsylvania’s Medical Marijuana Act (MMA) allows an employee to bring a private lawsuit against his or her employer for taking an adverse employment action “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
At the end of 2019, we urged employers to keep an eye on a new recreational marijuana legalization voter initiative in Arizona: the Smart and Safe Arizona Act. Although many employers have been focused on the COVID-19 pandemic in 2020, they may want to be aware that the Arizona Secretary of State has officially certified the Smart and Safe Arizona Act as one of two voter propositions on the November 2020 ballot. In addition to approving the initiative, Secretary of State Katie Hobbs has also published arguments for and against the measure.
In the past several years, marijuana legalization has become an increasingly difficult issue for employers to navigate. Marijuana legalization raises challenging workplace questions related to drug testing, disability accommodation, workplace safety, hiring, and employment termination, among other issues. Because of the fast-evolving nature of marijuana laws, and the wide variance in laws and protections from state to state, employers have struggled to keep up.
It is established that an employee’s drug addiction may qualify as a disability under the Americans with Disabilities Act (ADA), provided the employee is not currently using illicit substances. In the U.S. Equal Employment Opportunity Commission’s (EEOC) Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, the EEOC states that “[p]ersons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.” While the EEOC’s nonregulatory pronouncements do not have the force of law, courts addressing the issue generally have adopted this position.
In 2015, Louisiana passed a law authorizing the prescription of marijuana for the treatment of certain qualifying medical conditions, such as glaucoma, cancer, and spastic quadriplegia. In 2018, the statutory list of conditions was amended to include post-traumatic stress disorder, autism, and chronic pain. In the same amendment, the legislature designated the Louisiana Department of Agriculture and Forestry to oversee the production of medical marijuana. Since then, employers with operations and employees in Louisiana have been preparing for the new reality of managing marijuana in the workplace. These preparations are set to become even more challenging for Louisiana’s employers in light of new workplace realities and changes to the state’s medical marijuana law set to take effect in August 2020.
Like many states, Rhode Island has enacted a statute that governs the use of drug tests in the employment context. Under Rhode Island’s drug-testing statute, R.I. Gen. Laws § 28-6.5-1(a)(1), an employer may require an employee to submit to a drug test only if it has “reasonable grounds to believe based on specific aspects of the employee’s job performance and specific contemporaneous documented observations, concerning the employee’s appearance, behavior or speech that the employee may be under the influence of a controlled substance, which may be impairing his or her ability to perform his or her job.” Until recently, no appellate decision had addressed whether an employer had “reasonable grounds” to ask an employee to take a drug test.
On April 12, 2020, Virginia Governor Ralph Northam signaled his approval of—but has not yet signed—legislation (House Bill 972) that would decriminalize simple possession of marijuana. The impact of decriminalization on Virginia’s criminal process has been the highlight of the legislation, but the bill would also include restrictions that impact the application process for employers operating in the Commonwealth.
The COVID-19 pandemic is interrupting, and in many cases, preventing compliance with the Department of Transportation’s (DOT) drug and alcohol testing regulations. On March 23, 2020, DOT published guidance on compliance with DOT drug and alcohol regulations that clarified some existing legal requirements but offered little in the way of practical solutions. On March 25, 2020, however, the Federal Motor Carrier Safety Administration (FMCSA) published clear, flexible guidance specific to FMCSA’s testing requirements to aid FMCSA-regulated employers unable to comply with FMCSA’s testing requirements due to COVID-19.
The 2020 state legislative sessions are underway across the country and a hot topic in many states is medical marijuana. As discussed last year, Alabama was poised to become the first Deep South state to enact a medical marijuana law. The Alabama legislature ultimately tabled the issue until the 2020 legislative session.
The Department of Transportation’s (DOT) recent notice on the use of cannabidiol (CBD) products serves as a warning to employees in DOT-defined safety-sensitive positions. While the DOT has always had clear regulations strictly prohibiting the use of marijuana for truck drivers, school bus drivers, train engineers, pilots, transit vehicle operators, and the like, the increasingly widespread use of CBD products created a gray area with regard to testing.
It was a busy January 2020 in Trenton, with the state enacting several new employment laws, with more apparently on the way. This is in addition to the slew of new laws adopted in 2019 impacting New Jersey employers. Here’s a summary of recent employment law developments in New Jersey just one month into 2020, a look at what may be on the way, and a recap of 2019’s changes.
Florida’s 2020 legislative session convened today in Tallahassee. This session will be one to watch, as over 20 workplace-related bills have already been filed, covering such topics as discrimination and retaliation, minimum wage and overtime pay, pre-employment verification and background screening, reemployment assistance, tax credits and refunds, job relocation, job protections for medical marijuana users, paid family leave, and heat illness prevention.
As Arizona employers prepare for 2020, key minimum wages and exempt salary levels under city, state, and federal law will go into effect. Additionally, employers will want to remain aware of potential legislation and/or voter propositions on recreational marijuana and raises in the healthcare industry in Arizona.
In order to address employer concerns regarding the Illinois Cannabis Regulation and Tax Act, the Illinois General Assembly amended the Act via a trailer bill, Senate Bill 1557, during the fall legislative session. On December 4, 2019, Governor Pritzker signed the legislation into law as Public Act 101-0593. The changes took effect with the governor’s signature.
In the manufacturing industry, a workplace drug and alcohol policy can be a key feature of an employer’s health and safety program. Many manufacturers rely on testing to detect and deter employee impairment that might otherwise lead to accidents and injuries.
The Texas Legislature’s 86th session adjourned on May 27, 2019, and there is little likelihood that the governor will call a special session. The legislature primarily focused on educational reforms this year. Regarding employment matters, most observers expected the legislature to adopt laws preempting any attempt by municipalities to pass paid sick leave laws. While the legislature failed to pass any such law, they did pass other laws impacting the employer-employee relationship.
On May 29, 2019, the Illinois Senate passed Illinois House Bill (HB) 1438, which will legalize recreational marijuana in the state. This bill, known as the “Cannabis Regulation and Tax Act,” is expected to be signed into law by Illinois governor J. B. Pritzker, since he campaigned for office on a promise to legalize recreational marijuana.
On May 28, 2019, the Arizona Supreme Court issued a ruling in a criminal case, State v. Jones, clarifying the definition of marijuana under the Arizona Medical Marijuana Act (AMMA). The court held that the act’s definition of marijuana not only includes its dried-leaf/flower form, but also extracted cannabis resin.
Recent federal legislation removed hemp and hemp-derived products, including hemp-derived CBD, from Schedule I of the Controlled Substances Act, which drastically increased their marketability. Since the use and production of CBD oil and related products derived from hemp are now lawful under federal law and in most states, employers may want to learn the basics about CBD and what it means for their workforces.