Voters in five states approved laws to legalize medical or recreational marijuana on Election Day this year. What does this mean for employers in those states?
Arizona, Mississippi, Montana, New Jersey and South Dakota now have laws approving the use of marijuana in one form or another.
Arizona
Voters in Arizona passed the Smart and Safe Arizona Act which allows those who are 21 years old or older to possess less than one ounce of recreational marijuana, according to a blog post by law firm Jackson Lewis.
Employers are not restricted in their rights to maintain a drug- and alcohol-free workplace or restrict use of the drug by employees or prospective employees, and there is no requirement to accommodate use.
Arizona passed the Arizona Medical Marijuana Act in 2010, prohibiting employers from discriminating against medical marijuana patients, and the new law expressly states it’s not intended to limit any rights of qualifying patients.
This law doesn’t include a delayed effective date at this time.
Mississippi
In Mississippi, voters passed Initiative 65, allowing medical marijuana to be used by patients suffering from a qualifying medical condition.
Patients can possess up to 2.5 ounces of medical marijuana, and the law does not permit those patients to be subject to criminal or civil sanctions for using the drug.
The law does not require employers to accommodate medical marijuana use or affect any existing drug testing laws, regulations or rules.
Mississippi’s State Department of Health is required to issue final regulations by July 1, 2021 and begin issuing medical marijuana cards no later than Aug. 15, 2021.
Montana
Montana’s Initiative 90 and Constitutional Initiative 118 both passed allowing individuals age 21 or older to possess one ounce or less of marijuana.
Employers face no restrictions under the new law, which states it may not be construed to:
- require accommodation for marijuana use in the workplace
- prevent employers from disciplining employees for violating a workplace drug policy, or
- prohibit an employer from taking adverse actions against employees or potential employees who violate a workplace drug policy.
The law is effective Jan. 1, 2021.
Montana has had a medical marijuana law since 2004.
New Jersey
The state of New Jersey will amend its Constitution to legalize recreational use of marijuana for adults 21 and older after voters passed Question 1 on the ballot.
Effective Jan. 1, 2021, the Cannabis Regulatory Commission will begin regulating recreational marijuana, but still has to determine the amount individuals can possess, which is expected to take up to one year.
New Jersey approved the use of medical marijuana in 2013, and under 2019 amendments to the law employers are not permitted to discriminate against medical marijuana users.
South Dakota
South Dakota voters approved both medical and recreational marijuana use.
Under Measure 26, which allows use of medical marijuana by patients suffering a debilitating medical condition, card holders may possess up to three ounces of marijuana.
Cardholders are entitled to “all the same rights under state and local laws” as anyone prescribed a pharmaceutical medication as it pertains to:
- any interaction with an employer
- drug testing by an employer, and
- drug testing required by any state or local law, agency or government official.
This law doesn’t apply to the extent it would conflict with an employer’s obligations under federal regulation or if it would disqualify an employer from a monetary or licensing-related benefit under federal law.
Measure 26 goes into effect July 1, 2021, but it may take up to a year before medical marijuana is available in the state.
Constitutional Amendment A, effective July 1, 2021, permits individuals 21 years old or older to possess and use one ounce or less of marijuana.
The state’s Department of Revenue must issue regulations related to sale, cultivation and testing of marijuana no later than April 1, 2022.
Employers are not required to accommodate marijuana use under this law.
