5 Employer Considerations for Evolving Marijuana Legislation

Over the past decade, we have witnessed significant changes in marijuana legislation across the country. States and localities have eased the restriction on medicinal and recreational marijuana, which has created new business opportunities and tax revenue. “About 62 percent of U.S. respondents to a 2018 Pew Research Center survey said marijuana use should be legal, compared to 31 percent who supported legalization in 2000.”[i] As we continue to see legislative evolution throughout the country and around the world, be aware of how this can and will impact our organizations. From policies, drug testing, DOT, to FMLA, ADA and PFL accommodations.

Below are 5 considerations for evolving marijuana legislation:

State Legislation: “State laws reflect the changing attitude toward weed: Thirty-three states and Washington, D.C., have legalized medical marijuana use, and 10 states have approved both its medical and recreational use.”[ii]
Federal Legislation: “Schedule I: Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3 methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote”[i] “Despite marijuana’s Schedule I status, former President Barack Obama’s administration issued a memo in 2013 stating that federal prosecutors wouldn’t target adults who were growing or using marijuana in accordance with state laws. Instead, the federal government focused its efforts on preventing marijuana sales to minors and stopping drug cartels. Although President Donald Trump’s administration rescinded the Obama-era memo, there hasn’t been a ramp up in enforcement, and states continue to approve marijuana use.”[ii]
FMLA & Drug Free Workplace: “Family and Medical Leave Act (FMLA) and accompanying state laws allow qualified employees with serious health conditions to take time off for medical treatment. And the Drug-Free Workplace Act of 1988 requires federal contractors and grantees to guarantee drug-free workplaces as a condition of receiving government contracts or grants.”[iii]
Reasonable Accommodation: The Americans with Disabilities Act until recently, ruled against reasonable accommodation in relation to medicinal marijuana use. Employer-Friendly decisions include; Washburn v. Columbia Forest Products, Inc., Roe v. Teletch Customer Care Mgmt., Johnson vs. Columbia Falls Aluminum Co., and Ross v. RagingWire Telecommunications, Inc. Three out of the four rulings for employers happened in pro-marijuana states; California, Oregon and Washington. However, along comes Barbuto vs. Advantage Sales and Marketing, LLC; “the Massachusetts high court addressed whether an employer must accommodate medical cannabis use, since state law permits medical marijuana use and prohibits disability discrimination…The court held that an exception to the employer’s drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee’s physician determines that marijuana is the most effective treatment for the employee’s disability and that any alternative medication permitted by the employer’s drug policy would be less effective.”[iv]
Employer Policies & Procedures: Any of our drug-testing and screening practices must comply with emerging state and local laws, regardless of illegality at the federal level. While reviewing, we must also understand recent court cases on accommodations and what might be considered a reasonable accommodation. “In states that cover medical marijuana patients under disability laws, employers should confirm whether positive drug tests are connected to medicinal use before making employment decisions.”[v] Continue to monitor for changes this year in New York State, as recreational marijuana changes are on the docket in Albany and will be reviewed in the next few weeks. Ensure your organizations are in compliance with DOT regulations as well. Reviewing policies and procedures should be a priority for all organizations in 2019, regardless of state changes to recreational marijuana laws. If you operate in multiple states, do not have a blanket policy covering multiple states, it will not work.
Bonus Information: “What conditions make me eligible to get medical marijuana?You may be eligible for medical marijuana if you have been diagnosed with one or more of the following severe debilitating or life threatening conditions: cancer, HIV infection or AIDS, amyotrophic lateral sclerosis (ALS), Parkinson’s disease, multiple sclerosis, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, Huntington’s disease, post-traumatic stress disorder, chronic pain (as defined by 10 NYCRR §1004.2(a)(8)(xi)), pain that degrades health and functional capability as an alternative to opioid use or substance use disorder. The severe debilitating or life-threatening condition must also be accompanied by one or more of the following associated or complicating conditions: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms, PTSD or opioid use disorder.”[vi]
Confused yet? So am I. My recommendation related to this complex and evolving area of law, is to be aware of the changes, seek guidance from a labor and employment attorney, HR consultant and/or occupational medicine department. Attend multiple legal trainings on this subject and continue to review laws and regulations throughout the country. If a reasonable accommodation request is presented to you by an employee or applicant, review it like we would with any reasonable accommodation request, is it reasonable for the organization to accommodate? The process should be fluid between the employer, employee/applicant and physician(s). Medicinal marijuana cards are not easy to obtain in this state; I have seen two thus far as an HR consultant in New York State. Whereas, in Michigan, cards are much easier to obtain due to a medical condition.

Ask questions and do research on this subject, remember the internet is full of inaccuracies and alternative facts, outdated policies, etc. We have not seen a court case on this subject related to Paid Family Leave, yet. Evolution of laws, comes through court decisions. The ADA accommodation cases are new to our country and I can almost guarantee we will see more cases and rulings on this subject in state courts throughout the country moving forward. Update testing policies and procedures as needed, train the workforce and ensure management is aware of these evolving laws. Work closely with your EAP provider as well, they will also have advice on the topic.

New York: NYC Mandates Annual Anti-Harassment Training (4/1/19)

“The Stop Sexual Harassment in NYC Act requires New York City employers with 15 or more employees to provide annual interactive training to prevent sexual harassment for all employees, including interns and supervisory and managerial employees.

Such training is also required for new employees within 90 days of hire (however, an employee who has received sexual-harassment training at one employer within the required training cycle does not need to receive additional training at another employer until the next cycle).

The act defines “interactive training” as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission.””[vii]

[i] https://www.dea.gov/drug-scheduling

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/what-employers-need-to-know-about-marijuana-laws–.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

[vi] https://www.health.ny.gov/regulations/medical_marijuana/faq.htm

[vii] SHRM Update