Voters in four states took up the issue of marijuana use when they went to the polls November 6, and the results will have an impact on employers. In two states—Missouri and Utah—voters approved measures to allow medical use of marijuana. Voters in two other states—Michigan and North Dakota—voted on recreational use of marijuana, with Michigan voters saying yes and North Dakota voters saying no. Here’s a look at each state.
While the Utah medical marijuana measure late on election night seemed certain to pass, it will be up to state lawmakers to devise a final version of the law. In October, proponents and opponents of the ballot question agreed to support a legislative effort to enact a law allowing medical marijuana use.
“There’s still a big question mark over what medical marijuana in Utah will look like,” Ryan Frazier, an attorney with Kirton McConkie in Salt Lake City, said a day after the vote. Although the final form the law will take remains a mystery, he says he can’t imagine a law that “undoes what the voters did.”
Frazier says nothing in the final bill is likely to change an employer’s ability to enforce workplace impairment rules. Employers with workplace rules prohibiting employees from being impaired at work certainly can continue to enforce them. But they may need to revisit their drug-testing policies, since they may be testing people who have a legal right to use marijuana.
Depending on the circumstances, it’s possible such use could be an accommodation under the Americans with Disabilities Act (ADA). “That’s still to play out,” Frazier says, but a new law “doesn’t change an employer’s right to enforce anti-impairment rules.”
Frazier says employers need to be careful about asking employees and applicants about potential disabilities up front. If an employee tests positive for marijuana and then claims he is authorized to use it, the employer may need to engage in the interactive process to see if medical marijuana is a reasonable accommodation.
In some jobs, such as public safety positions and those in which employees carry weapons, medical marijuana likely wouldn’t be an appropriate accommodation, but it might be in other circumstances.
Voters chose between three versions of a medical marijuana measure. The version that passed will allow the use of marijuana for medicinal purposes and will impose a 4% tax on marijuana sales with the proceeds going toward services for military veterans.
News reports on the initiative say that patients who have approval from their physicians will be issued identification cards allowing them and their registered caregivers to grow up to six marijuana plants and buy at least 4 ounces of medical cannabis from dispensaries per month. Dispensaries and medical marijuana product manufacturers will be issued licenses from the state.
An alert from the St. Louis office of the Armstrong Teasdale law firm advises that the measure identifies specific serious medical conditions qualifying a patient to purchase medical marijuana. It also gives physicians the discretion to determine that a different condition qualifies a patient to purchase and use medical marijuana.
The alert also says the Missouri Department of Health and Senior Services will issue regulations and make license applications available by late spring 2019. “The state will issue three categories of licenses: cultivation licenses for growing and selling medical marijuana, licenses to manufacture marijuana-infused products, and dispensary licenses to sell marijuana or marijuana-infused products to qualifying patients,” the alert states.
Michigan voters approved legalizing recreational use of marijuana, but employer policies aren’t likely to be affected, says Gary Fealk, an attorney with The Murray Law Group, P.C. in Bingham Farms, Michigan. “There’s pretty good language in the ballot proposal that says they can continue to enforce their drug-testing policies.” He has nevertheless advised some employers to issue a notice informing employees of their policies related to drugs and drug testing.
The measure doesn’t require an employer to allow marijuana use in the workplace or on the employer’s property, Fealk says, and the way the statute is written appears to allow organizations to enforce workplace drug policies prohibiting marijuana use.
Complicating the issue is the fact that someone may test positive for marijuana without being impaired, since tests can detect marijuana use that took place days or weeks before the test. So, what if someone tests positive but isn’t impaired at work? “There is a small possibility of someone challenging on that basis, but I think [the Michigan law] was written in a way to try to eliminate that issue,” Fealk says. Employers can still refuse to hire applicants or discipline employees because of violations of an employer’s drug policies.
Although the law appears to allow employers to enforce policies prohibiting marijuana use, they may see more cases of employees testing positive. The “biggest effect” the new law may have on employers, Fealk says, is that more people will test positive, making it harder to fill jobs.
An effort to legalize marijuana for recreational use in North Dakota was failing by a 59% to 41 percent% margin late on election night. A report on Forbes.com says the proposed law would have set no limit on the amount of marijuana people could possess or grow. Details would have had to be worked out by state lawmakers. Also, the ballot measure would have allowed legal production and sales.
Vanessa Lystad, an employment law attorney with the Vogel Law Firm in Fargo, says the North Dakota measure was silent about employer policies on drug use and drug testing. If the measure is ever resurrected and returned to the ballot, she hopes the drafters will “bring more clarity to the issue of workplace rules.”
In 2016, North Dakota voters passed a medical cannabis ballot initiative by a margin of 64% to 36%.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.