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Marijuana Gives Employers Headaches

On Nov. 8 when the nation went to the polls to elect a new president, voters in several states also voted on marijuana initiatives that have implications for employers operating in those jurisdictions.

“As this area of law is developing quickly, and since the Trump administration’s position on marijuana is unclear, employers may want to consider the impact of these new laws and watch for new developments,” say attorneys with the law firm of Ogletree Deakins.

Initiatives loosening current marijuana laws were approved in four states. In Arizona a recreational marijuana initiative was defeated, although the state already allows medical use of the drug.

Except in situations involving transportation safety rules and federal restrictions, Arizona prohibits discrimination against employees and applicants based only on their use of medical marijuana

In California, which already allowed medical marijuana, even in the most tenuous and unprovable diagnoses, voters allowed its recreational use.

Remaining intact are laws holding it is an act of negligence or professional malpractice to perform certain tasks under the drug’s influence. Employers also are expressly allowed to continue enforcing drug- and alcohol-free workplace policies.

By an extremely close vote Maine became the fourth state this year to legalize recreational marijuana use.

Although employers can prohibit the possession or use of marijuana in the workplace, discrimination against an employee for using it is banned.

As a result, employers who drug test applicants and employees will need to prove that someone testing positive for marijuana was indeed under its influence, in possession of or using it in the
workplace they are denied a job or disciplined, the Ogletree Deakins attorneys note.

Also approving recreational use were voters in Nevada. Employers are not prohibited from maintaining and enforcing workplace policies that ban employees from being under the influence. Also, both Nevada law and existing federal statutes preserve employers’ right to maintain a drug-free workplace.

Massachusetts now allows for limited recreational marijuana use, cultivation and possession, but employers are free to prohibit its use in the workplace and enforce drug testing policies.

Arkansas legalized the use of marijuana by individuals who have qualifying medical conditions. The new law prohibits employers from discriminating against someone solely based on being a qualifying patient or designated caregiver who may test positive from contact with the patient.

However, the law does not require an employer to accommodate the use of marijuana in the workplace or an employee working while under its influence.

The voters of Florida also approved the medical use of marijuana, but only by those with debilitating medical conditions, such as cancer, epilepsy, glaucoma and post-traumatic stress disorder.

The new law does not require accommodation of the use of marijuana in any place of employment, and does not require health insurance coverage of medical marijuana expenses.

In North Dakota residents who suffer from conditions that include cancer, PTSD and chronic pain can access marijuana. In this case, the state law also doesn’t offer any employment protections for these medical marijuana users.

Although medical marijuana was already legal in Montana, beginning on June 30, 2017, it will be easier for licensed providers to prescribe it and PTSD was added to the list of covered conditions.

As in other states, Montana employers don’t have to accommodate employee use of medical marijuana.

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