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.
While the COVID-19 pandemic brought a halt to many state legislative efforts to legalize marijuana in 2020, many of those efforts have been renewed in 2021, and some states have begun to consider marijuana legalization for the first time. Also, while Mississippi and South Dakota voters approved marijuana legalization measures in November 2020, subsequent developments have emerged that may impact those approvals.
Employers new to marijuana legalization laws may want to be aware of the two broad categories of medical marijuana laws: (1) laws with express protections within the language of the statutes for medical marijuana cardholders (i.e., “antidiscrimination” provisions) and (2) laws without express protections for medical marijuana cardholders. Employers should also be aware that irrespective of whether a medical marijuana law contains an antidiscrimination provision, they should be mindful of the potential disability and accommodation issues inherently at play when dealing with medical marijuana cardholders.
Importantly, while recreational marijuana laws are becoming more common, they typically do not contain employment protections for recreational marijuana users—although New Jersey recently deviated from this approach.
Employers may also want to keep in mind that legislation tends to evolve as bills work their way through the legislative process, and many of the bills discussed in this article are still in committee or other preliminary stages.
Medical Marijuana Legislation
Senate Bill 46 would legalize marijuana for medicinal purposes in Alabama. The bill, which is the same as prior legislation introduced in 2020, does not contain any employment protections for medical marijuana cardholders.
Senate Bill 692 and House Bill 335 would amend the existing Florida Compassionate Medical Cannabis Act to include a provision prohibiting public employers from taking adverse employment action against medical marijuana cardholders. The proposed legislation would permit a public employer to discipline an employee if the employer is able to show that the “lawful use of medical marijuana use is impairing the employee’s ability to perform his or her job responsibilities.” Importantly, this prohibition would not extend to private employers. This development follows failed efforts in 2020 to amend the Florida Compassionate Medical Cannabis Act to prohibit private employers from discriminating against medical marijuana cardholders.
Senate Bill 64 would amend the existing Hawaii Medical Marijuana Act to include protections for medical marijuana cardholders.
The Idaho Senate recently voted in favor of an anti-drug constitutional amendment, Senate Joint Resolution 101. The proposed amendment to the Idaho Constitution would make the use of all psychoactive drugs, including marijuana, illegal. In response, the Idaho House Health & Welfare Committee voted to introduce the Sergeant Kitzhaber Medical Cannabis Act, a medical marijuana legalization bill. The proposed act does not contain any employment protections for medical marijuana cardholders.
Kansas Governor Laura Kelly recently announced a proposal to legalize marijuana for medicinal purposes. Relatedly, both the Kansas Senate Commerce Committee and House Federal and State Affairs Committee have introduced medical marijuana legalization bills. The proposed bills, Senate Bill 92 and House Bill 2184, do not contain any employment protections for medical marijuana cardholders.
House Bill 136 and Senate Bill 92 would legalize marijuana for medicinal purposes in Kentucky. House Bill 136 is a renewed bill that is the same as prior legislation introduced in 2020. Neither bill contains any employment protections for medical marijuana cardholders. Recent news reports, however, have indicated that there is a strong likelihood that these bills will not pass this legislative session.
Senate Bill 504 would amend the existing Maryland medical marijuana law to include protections for medical marijuana cardholders. House Bill 683 would add medical marijuana to the list of medical treatments that can be provided to injured employees under the state’s workers’ compensation laws.
Since voters approved Initiative Measure 65 during the November 2020 election legal challenges have arisen related to the constitutionality of the initiative. The Supreme Court of Mississippi will hear oral arguments on this issue in April 2021. Perhaps in response to these challenges, Senate Bill 2765 would serve as an alternative or parallel to the medical marijuana program authorized by Initiative Measure 65. Senate Bill 2765, which passed the Mississippi State Senate on February 12, 2021, does not contain any employment protections for medical marijuana cardholders.
Legislative Bill 474 would legalize marijuana for medicinal purposes in Nebraska. The bill does not contain any employment protections for medical marijuana cardholders.
House Bill 3361 and Senate Bill 150 represent alternative bills that would each serve to legalize marijuana for medicinal purposes in South Carolina. Neither bill contains any employment protections for medical marijuana cardholders.
In November 2020, South Dakota voters approved Initiated Measure 26, which would establish a medical marijuana program in South Dakota. Governor Kristi Noem recently announced a plan to delay the implementation of Initiative Measure 26, which was originally scheduled to take effect in July 2021, until July 1, 2022. The South Dakota legislature subsequently introduced House Bill 1100, which reflected Governor Noem’s efforts to delay implementation of South Dakota’s medical marijuana program.
House Bill 1862 would prohibit an employer from taking adverse employment action against a medical marijuana cardholder based on the individual’s lawful use of medical cannabis. Notably, Virginia does not have a typical medical marijuana law or program in place but instead has a limited medical marijuana program allowing individuals to use cannabis oils and products with less than 10 mg of tetrahydrocannabinol (THC).
Recreational Marijuana Legislation
Senate Bill 5853 and Senate Bill 888 would legalize marijuana for recreational use in Connecticut. Governor Ned Lamont has also been a vocal proponent for legalization of marijuana for recreational use.
Hawaii lawmakers are currently considering several alternative bills (such as Senate Bill 767) to legalize marijuana for recreational use in Hawaii.
House Bill 32 would legalize marijuana for recreational use in Maryland.
Legislative Bill 546 would legalize marijuana for recreational use in Nebraska.
On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalizing marijuana for adult recreational use in New Jersey and prohibiting employers from taking adverse action against employees solely because they use marijuana.
New Mexico lawmakers are currently considering several alternative bills (such as House Bill 12) to legalize marijuana for recreational use in New Mexico.
Senate Bill 854 would legalize marijuana for recreational use in New York. Governor Andrew Cuomo has also been a vocal proponent of the legalization of marijuana for recreational use.
House Bill 1420 would legalize marijuana for recreational use in North Dakota.
House Bill 1961 would place the issue of marijuana legalization for recreational use on the 2022 Oklahoma election ballot.
On February 27, 2021, the Virginia General Assembly approved legislation that would legalize the sale and possession of recreational marijuana for adult recreational use beginning on January 1, 2024. Governor Ralph Northam has not yet signed the legislation and may propose amendments that would speed up the effective date of the proposed law.
Legislation to decriminalize the possession of small amounts of marijuana is also pending in several states. These laws should be viewed differently than typical recreational marijuana legalization laws.
Employers across the country may want to closely monitor state marijuana legalization efforts. Marijuana legalization continues to be a quickly moving area of the law, and employers following these developments should expect marijuana legalization efforts to continue in the years to come.
Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.