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While much of 2020 centered around the COVID-19 pandemic and the presidential election, state legislatures stayed busy with initiatives related to drug testing and controlled substances laws.
Following is a brief review of the new laws and changes to existing laws that impact workplace drug testing. Marijuana-specific laws are discussed separately, as this subject continues to be an area that receives unique attention.
Legislative Changes to State Drug Testing Laws
Alabama passed a law that made it a criminal offense to use or distribute synthetic urine or urine additives for the purpose of defrauding a drug screen. The intent is that this will reduce incidents of drug test cheating within the state.
New York expanded its requirements for mandatory pre-employment drug testing to include certain for-hire drivers. The new law requires all applicants who drive for-hire vehicles transporting 10 or more people at a time to submit to mandatory pre-employment drug testing. This drug testing must comply with the requirements of 49 CFR Part 40 and applies to all drivers regardless of their Commercial Driver’s License (CDL) status.
Utah made changes to its workers’ compensation program related to alcohol testing and denial of claims based on alcohol intoxication. The legislature reduced the blood and breath alcohol concentrations at which an employer can presume that intoxication was the major contributing cause of an employee’s injuries. The blood and breath alcohol concentrations were also reduced relating to other factors affecting workers’ compensation and disability claims. Blood and breath alcohol concentration levels were decreased from .08 to .05.
West Virginia amended its unemployment compensation statute to provide that if an employee is terminated due to violation of an employer’s drug or alcohol policy, the employee, if injured at the time of the intoxication, forfeits indemnity benefits under workers’ compensation laws. The employee is required to have received notice of the drug or alcohol policy prior to the incident. The amendment also clarifies that violation of an employer’s drug- or alcohol-free workplace program can still be grounds for a finding of gross misconduct.
Legislative Changes to State Cannabis Laws
Delaware created a CBD-rich medical marijuana card to treat anxiety in adults. The state established a medical marijuana program in 2011, but anxiety was not included at that time as a qualifying condition.
Iowa passed amendments to its medical cannabis law. The law changed THC limits from 3% to 4.5 grams per patient per 90 days, with an exception for certain terminally ill patients. The law also added new medical conditions to the list of permitted conditions and replaced “untreatable pain” with “chronic pain.”
Importantly, Iowa’s medical cannabis amendments included several provisions protecting workplace policies. The law clarifies that employers are permitted to establish zero-tolerance marijuana policies and may prohibit marijuana use by employees in contracts. The law also clarifies that the state cannabis law does not create a claim for adverse employment action due to marijuana use by employees. Unemployment compensation may be denied if an employee used marijuana in the workplace, was under the influence while working, or tested positive for any other controlled substance without a prescription. Health insurance and worker's compensation are also not required to reimburse for medical marijuana.
Maryland increased the amount of marijuana below which possession is a civil offense, rather than a criminal offense from 10 grams to one ounce (about 28 grams). Maryland also amended certain restrictions regarding caregivers of medical marijuana patients who are under 18 years old.
Utah made amendments to its medical marijuana law, including employer protections. The amendments include a provision that states that nothing in the law requires a private employer to accommodate the use of medical marijuana in the workplace, and that employers retain the right to have policies restricting the use of medical marijuana by applicants or employees.
Virginia moved to decriminalize marijuana to a certain extent. Simple marijuana possession and possession of CBD oil now carry only a civil penalty in the state. Possession of marijuana was changed from a primary offense to a secondary offense, which means that a summons for marijuana possession can only be issued if an individual is stopped for another offense. An offender cannot be stopped solely for simple possession of marijuana.
Washington, DC passed new laws related to medical marijuana and public employers. Public employers cannot refuse to hire, terminate from employment, or take adverse employment action against individuals based on their status as a qualifying medical marijuana patient unless the individual used, possessed, or was impaired by marijuana at their place of employment or during employment hours. This law does not apply to private employers.
Voter Initiatives Legalizing Medical Marijuana
Continuing the trend in recent years of marijuana legalization,
(with one state doing both). Additionally, Oregon and Washington, DC approved other drug-related initiatives. Following is a brief overview of changes that employers should be aware of, as well as pertinent workplace information.
Mississippi added medical marijuana via Initiative 65, which establishes a medical program for those with debilitating medical conditions as defined in the law. The program will be implemented by July 1, 2021, and the issuing of cards will begin no later than August 15, 2021. There is no guidance offered for employers as passed, however, Initiative 65 includes language that any additional rules and regulations pertaining to the program (such as potential workplace guidance) must be issued by the implementation date.
South Dakota voters approved Measure 26, legalizing medical marijuana, effective October 29, 2021. To qualify, individuals must have a physician-certified debilitating medical condition. Program participants are prohibited from undertaking “any task under the influence of cannabis when doing so would constitute negligence or professional malpractice.”
Employers are not required to permit medical marijuana ingestion in the workplace or employees working while under the influence of marijuana. Qualifying patients are not to be considered under the influence solely because of the presence of marijuana metabolites or components that appear in “insufficient concentration to cause impairment.” If an employer would be disqualified from a monetary or licensing-related benefit due to obligations under federal laws or regulations due to compliance with the medical marijuana program, they are not required to comply.
Arizona added recreational marijuana to its existing medical marijuana program via Proposition 207, requiring that a regulatory framework for recreational sales be established by April 5, 2021. It is unlikely that recreational sales will begin until half-way through 2021. Under the new law, individuals 21 and older are permitted to possess, consume, and transfer marijuana.
Employers are not required to accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivation of marijuana in the workplace. Employers are not restricted in their ability to prohibit or regulate conduct that is permitted by Prop 207 when such acts occur on business property. Additionally, driving while “impaired to even the slightest degree by marijuana” is strictly prohibited.
Montana passed two recreational marijuana initiatives, Initiative 190 and Initiative 118. Initiative 118 amends the state constitution to establish a minimum age of 21 for recreational marijuana market participation.
Initiative 190 will become fully effective on October 1, 2021. It contains much of the framework for the recreational marijuana program and provides some guidance for employers. Under Initiative 190, employers are not required to permit or accommodate recreational marijuana in the workplace or on work property.
Employers can discipline or take adverse employment action against employees for the violation of a workplace drug and alcohol policy. Additionally, employers can discipline employees that work while intoxicated by marijuana and can deny an applicant a position based on the violation of a workplace drug and alcohol policy.
New Jersey Public Question 1 passed recreational marijuana legalization effective on January 1, 2021. Under Question 1, the possession and use of marijuana is legal for those ages 21 and older. As passed, there is no information for employers or pertaining to the regulatory framework – it is likely that the legislature will quickly begin providing guidance in the form of new laws.
South Dakota made history by becoming the first state to legalize both recreational and medical marijuana at once. Amendment A, legalizing recreational marijuana for individuals 21 and older, requires the legislature to pass additional laws pertaining to the medical marijuana program by April 1, 2022. Under Amendment A, employers are not required to accommodate the use of recreational marijuana and are not limited in their ability to restrict an employee’s use of marijuana. Amendment A is currently in limbo as opponents of the measure attempt to overturn it. In February 2021 a Circuit Court Judge overturned the amendment as unconstitutional. The state Supreme Court is expected to hear arguments sometime later this year.
Voter Initiatives Regarding Other Drug Legalizations
Oregon became the first state to move toward full legalization of all drugs with the passage of Measure 109 and Measure 110. Measure 109 authorizes a program permitting licensed service providers to administer psilocybin-producing mushrooms and fungi (commonly known as magic mushrooms) to individuals ages 21 and older. The state is required to develop standards for dosing, labeling, and packaging psilocybin and must develop the program in its entirety within two years of the measure’s passage.
Measure 110 classifies the possession of any Schedule I to IV controlled substance as a violation that may result in a fine of no more than $100 or, in lieu of the fine (for a class e violation), a completed health assessment. All health assessments must be performed through an addiction recovery center and include a substance use disorder screening. Measure 110 is effective on February 1, 2021.
Washington, D.C. Initiative 81 designates the non-commercial cultivation, distribution, possession, and use of entheogenic plants and fungi (such as magic mushrooms) as the lowest law enforcement priority. Initiative 81 will become effective following a 30-day period of Congressional review and publication in the D.C. register.
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