What just happened? An Employer’s Guide to Drug-Related 2020 Voter Initiatives

The 2020 elections involved 10 different voter ballot initiatives across the nation involving the legalization, decriminalization, or priority demotion of various drugs. This video session provides a brief overview of the initiatives expected to pass upon full counting of all ballots that may have an impact on the administration of a drug-free workplace program in those states. This discussion is limited in scope to selected issues that may have an impact on the administration of a drug-free workplace policy. Employers and attorneys in these states should investigate the entirety of the law and consider enrolling in a related workplace drug testing law course for a more comprehensive review of the law in the state.[1]

Arizona Proposition 207

Legalizes recreational marijuana for 21 or older. Proposition 207 explicitly provides that employers retain their rights to maintain drug-and-alcohol-free places of employment. Section 36-2851 protects the employer’s existing right to conduct tests for marijuana including in pre-employment scenarios. The proposition also does not restrict an employer’s right to prohibit marijuana in the workplace.

Mississippi Measure 1a and Measure 1b. Medical Marijuana 65

Medical Marijuana Initiative 65 authorizes medical marijuana prescription for 22 debilitating conditions. The initiative does not require employer accommodation for the use of medical marijuana in any place of employment and provides that its enactment shall not affect any existing drug testing laws, regulations, or rules.

Montana Constitutional Initiative 118

Authorizes the state to set legal age for an adult for marijuana use in the Montana Constitution.

Montana Initiative 190

Legalizes recreational marijuana in Montana for adults 21 and older. The initiative does not prohibit an employer from preventing the use, sale, possession, or display of marijuana in the workplace. It also does not prohibit an employer from disciplining an employee for violation of a drug-free workplace policy nor does it prohibit an employer from declining to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual because of a drug-free workplace policy violation.

New Jersey Public Question 1: Marijuana Legalization Amendment

Legalizes marijuana use for adults over 21 and is to take effect January 1, 2021. The Legislature will then define the state commission’s scope of authority.

Washington D.C. Initiative 81

Initiative 81 makes the investigation of crimes related to entheogenic plants and fungi at the lowest tier of priority for law enforcement and calls on the US Attorney for DC to cease any ongoing prosecutions of related offenses. Entheogenic plants and fungi include certain fungi containing psilocybin, peyote, and iboga.

Oregon Measure 109

Legalizes medical use of psilocybin and funds research and education initiatives for psilocybin as a therapeutic. Legalizes psilocybin as a treatment option for certain mental health conditions such as treatment-resistant depression on a two year timeline.

Oregon Measure 110

Measure 110 decriminalizes possession of small amounts of street drugs such as heroin, cocaine, and meth. Requires a fine or a health assessment (by telephone in early phases). Funded by revenues from legalized Marijuana. Criticized for essentially dismantling an existing system, replacing health assessment (at least temporarily) with a telephone hotline, and not having any safeguards addressing racial inequities—particularly as people of color are disproportionately affected by substance abuse disorders.[2]

South Dakota Amendment A

Amendment A legalized both medical and recreational marijuana simultaneously (a first) for individuals 21 or older. However, the amendment does not require that an employer permit or accommodate marijuana in the workplace. It does not otherwise prohibit an employer from restricting marijuana use by employees.

South Dakota Initiated Measure 26

Initiated Measure 26 authorizes medical marijuana and the issuance of medical marijuana cards for those with qualifying debilitating conditions. A cardholder is protected from arrest, prosecution, penalty, denial of a right or privilege including disciplinary action from a court or occupational or professional licensing board for the use of medical marijuana.

Medical marijuana cardholders are provided the same protections as the person would be afforded if the person were solely prescribed a pharmaceutical medication as it pertains to “(1) Any interaction with a person’s employer; (2) Drug testing by a person’s employer; or (3) Drug testing required by any state or local law, agency, or government official.”[3] However, this does not apply to the extent of a conflict with an employer’s obligation under federal law or regulation or to the extent that the employer would be disqualified from a monetary or licensing-related benefit under federal law or regulation.[4]

Section 14 provides that a medical marijuana card cannot be used to constitute probable cause or reasonable suspicion or used to support a search of the person or property of the person or otherwise subject the person to inspection by any governmental agency.[5]

No employer is required to allow ingestion of cannabis in any workplace or to allow any employee to work while under the influence of cannabis. A registered qualifying patient may not be considered under the influence of cannabis solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.[6] An employer can discipline an employee for ingesting marijuana at work.[7]

Conclusion

The vast majority of states legalizing marijuana for recreational and medical use have retained some or all of an employer’s right to a drug-free workplace policy. The specific limitations involved and where the line is drawn in determining whether a particular act violates a drug-free workplace varies from state to state. State and federal laws are constantly evolving on the issue and ensuring compliance with the changes can help avoid costly liability in the future.

References:

[1] https://drugtestingcourses.com/workplace-drug-testing-laws/ [2] See, e.g., https://www.wweek.com/news/2020/09/24/leading-addiction-advocacy-services-group-announces-opposition-to-measure-110/ [3] South Dakota Initiated Measure 26, § 22 (2020). [4] South Dakota Initiated Measure 26, § 23 (2020). [5] South Dakota Initiated Measure 26, § 14 (2020). [6] South Dakota Initiated Measure 26, § 24 (2020). [7] South Dakota Initiated Measure 26, § 25 (2020).



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