As the Legalization of Recreational Marijuana Continues, States Differ on Employer’s Rights

Connecticut has recently legalized the recreational use of Marijuana, joining 18 other States. Each has different rules and laws. For example, each state has:

• Their own process for licensing dispensaries
• Varying tax rates and sales regulations
• Differing provisions regarding the amount of marijuana an adult can legally possess
• Varying positions on remote delivery
• Laws around growing plants
• Ways tax revenue is spent

The impact of recreational or medical marijuana on employment regulations differ from state to state as well. In most states, employers are free to fire, discipline, or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana—even if they need it to treat a medical condition.  Recent regulations and legal challenges include:

• Illinois has amended the Right to Privacy in the Workplace Act to state that employers are permitted to enforce a “pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug-free workplace policy or disciplining an employee for violating such policy.” However, the amendment states that an employer may not take adverse action against an employee solely because of a positive drug test for cannabis, setting forth conditions under which an employer may discipline an employee for impairment.
• Connecticut’s new bill that not only requires expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. While these protections are more limited than those recently recognized in neighboring states New York and New Jersey, Connecticut employers should review current policies and practices to ensure they are prepared for the changes by July 1, 2022, the effective date of the new employment provisions. A positive marijuana test result, standing alone, will be insufficient to justify adverse employment action.
• The Superior Court of Pennsylvania has determined that employees can sue their employers for claims under the Pennsylvania Medical Marijuana Act, which prohibits employers from discharging, threatening, refusing to hire, or otherwise discriminating against an employee solely based on an employee’s status as an individual who is certified to use medical marijuana.

The expansion of legalized marijuana across the U.S. has created additional challenges for employers. Among the items compliance and HR teams must consider:

• Drug testing
• Hiring practices
• Off-hours use by employees
• Workplace safety

If you are an employer of workers living in any of these 19 states, nextSource can help you navigate the waters of compliance. Connect with us today.