Legal Marijuana and Shifting State Laws

By Adam Hall, Staff Writer & Editor at Current Consulting Group (CCG)

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

Marijuana continues to be a proverbial thorn in employers’ side as its legal status varies from state to state. Despite marijuana being legal in many states, both medicinally and recreationally, it is imperative that employers thoroughly understand state laws when implementing testing programs for their organization.

In most states where marijuana use has been legalized, employers can still include marijuana on their standard drug testing panel. However, this pro-employer trend may be changing as legal marijuana grows in popularity. This article will highlight some of the more significant changes to state laws in 2022 and draw attention to the importance of how state laws may impact your workplace.

California

On September 19, 2022, Governor Gavin Newsom, signed a bill (Assembly Bill No. 2188) that provides protection to off-duty marijuana users in the state of California. This bill was passed with the faulty idea that once metabolized, marijuana no longer has a psychoactive effect on the user, and is instead stored in the user’s body as a non-impairing metabolite. While no drug testing method can prove, either scientifically or legally, that a person is impaired, no testing method, laboratory-based or rapid-result, distinguishes between active and non-active metabolites. Yet, the California State Legislature declared that the intent of drug tests is to identify impairment, and that most drug testing is performed only once marijuana has been metabolized; therefore, the test does not indicate impairment.

AB 2188 also states that employers may not discriminate against persons following an employer-required drug test that has discovered “non-psychoactive” marijuana metabolites in their sample. Presumably, a drug testing method that is capable of identifying the parent drug and not just a metabolite such as oral fluid drug testing would be acceptable in California.

Lastly, this bill requires all applicable employers to comply by January 1, 2024.

Rhode Island

As of May 25, 2022, Rhode Island has legalized the use of recreational marijuana under what is widely referred to as The Rhode Island Cannabis Act. The Act was signed by Governor Daniel McKee, making Rhode Island one of the most recent states in the U.S. to join the growing list of states offering legal marijuana. Despite this change in legal status, employers still can outlaw marijuana in the workplace.

The new Rhode Island bill (House Bill 7593) explicitly states that employers are not required to accommodate the use or possession of marijuana, or being under the influence of marijuana, in any workplace. Included in this bill is the ability for employers to implement drug use policies prohibiting activities associated with marijuana use.

Additionally, applicants or employees who violate company policies on marijuana use may be subject to refusal to hire, termination, or other action pertaining to employment status.

Mississippi

After initially passing in November of 2020, and following changes spurred by litigation in 2021, the State of Mississippi has now passed Senate Bill 2095, which permits the use of medical marijuana in the state as of February 2022. The bill, referred to as the Mississippi Medical Cannabis Act, permits the use of medical marijuana for various medical conditions. As with the latest change in Rhode Island, this new law affords employers certain protections as it relates to workplace testing.

Like other states, employers in Mississippi are not required to accommodate the use of medical marijuana in the workplace. Backed by company policies, employers may still take adverse employment action against an individual using medical marijuana, including hiring, termination, etc., regardless of impairment or lack thereof. Additionally, employers are not required to make special modifications to job duties for employees using or seeking to use medical marijuana.

Conclusion

The three states highlighted in this article provide examples as to how marijuana laws are changing from state to state. The importance of understanding how these changes impact employers is critical when developing an effective and compliant drug testing policy. It is also important to acknowledge employees covered by federal regulations, such as individuals operating under Department of Transportation rules, must still adhere to federal marijuana testing requirements regardless of the legal status in the employee’s respective state.

As state laws around marijuana change, employers should update their company policies accordingly to ensure the most up-to-date compliance, while maintaining the overall goals of the company’s drug testing program.

© 2010-2022 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.