On November 7, in addition to sending Mr. Trump to the White House, voters in seven states legalized the use of marijuana, approving state-wide ballot measures that decriminalized the recreational use of cannabis or authorized its medical use. Here’s a run-down of the seven laws, with an eye toward their impact on employers and landlords.
Arkansas Medical Cannabis Act. This law authorizes qualifying patients to possess and use no more than two and one-half ounces of usable cannabis and no more than ten cannabis plants. A patient qualifies for the possession and use of cannabis if he is registered with the state as having a qualifying medical condition that warrants medical use of cannabis. Arthritis, asthma, ADHD, general anxiety disorder, and PTSD are some of the many qualifying medical conditions. The Arkansas law also authorizes individuals to serve as designated caregivers to assist patients in the purchase, cultivation, possession, and use of cannabis. Non-profit cannabis care centers are permitted to sell cannabis to patients and their caregivers.
Employers may not discriminate against applicants or employees by virtue of their past or present status as registered patients or caregivers. The Arkansas law does permit employers to refuse to accommodate the ingestion of cannabis in the workplace and to prohibit employees from working while under the influence of the drug.
Arkansas landlords may not refuse to lease to tenants solely because they are patients or caregivers unless leasing to them would violate federal laws or regulations. Landlords may prohibit the smoking of cannabis on the leased property, but may not prohibit other forms of consumption.
California’s Control, Regulate, and Tax Adult Use of Marijuana Act. California’s Proposition 64 legalized the nonmedical possession and use of marijuana by adults over the age of twenty-one. They may now possess up to one ounce of marijuana and cultivate up to six plants. Possession and cultivation for personal use in excess of these limits are still illegal.
Employers may still maintain and enforce drug and alcohol-free workplace policies prohibiting the use of marijuana by employees and prospective employees. Also, any person who engages in conduct while under the influence that constitutes professional malpractice or negligence can be held liable.
California’s law does not prevent landlords from restricting or prohibiting the use, possession, or cultivation of cannabis on their premises.
California already allows patients and registered caregivers to obtain and use medical marijuana upon the recommendation of a physician. Physicians may give recommendations when they believe the person’s health would benefit from the use of marijuana for the treatment of diseases such as cancer, chronic pain, migraines, or any other illness the symptoms for which marijuana provides relief.
Similar to the nonmedical use laws, employers are not required to accommodate the medical use of marijuana in a workplace or during the hours of employment. And, even though California has a statute prohibiting an employer from discriminating against an employee due to legal outside-of-work activities, taking adverse employment action based on off-duty marijuana use is permitted because marijuana remains illegal under federal law. California courts have held that a patient/employee cannot maintain claims under the State’s Fair Employment and Housing Act for wrongful termination when an employer took adverse action against her for testing positive for marijuana.
Florida’s Use of Marijuana for Debilitating Medical Conditions Act. This law decriminalizes the medical use of marijuana by a qualifying patient; it permits a person to act as a caregiver to assist in the use of marijuana consumption, and it authorizes physicians to issue certifications prescribing its medical use. Cancer, glaucoma and Crohn’s disease are among the recognized medical uses. Additionally, a physician has the discretion to issue a certification for medical use if (1) the patient suffers from a debilitating medical condition, (2) the medical use outweighs the health risks, and (3) the physician identifies how long use is needed.
The law does not require an employer to accommodate any on-site use of medical marijuana at its place of employment. And the law is silent on the subject of employment-related discrimination against those employees who use it off-site.
Massachusetts Regulation and Taxation of Marijuana Act. This law decriminalizes the non-medical use of marijuana, allowing adults over the age of twenty-one to possess up to one ounce of marijuana outside the home and ten ounces within the home, and to cultivate up to six plants for personal use; however, employers are not required to permit or accommodate marijuana use in the workplace. Indeed, they may enact and enforce workplace policies restricting the consumption of marijuana by employees. Any person who conducts a task under the influence of marijuana that would constitute malpractice or negligence can be held liable for that conduct.
Landlords may not prohibit tenants from consuming marijuana by non-smoking methods unless failing to do so would cause them to violate federal laws or regulations.
This law will take effect on December 15, 2016.
Massachusetts already had a medical marijuana statute on the books: the Humanitarian Medical Use of Marijuana Act, which allows qualifying patients (and their designated caregivers) to purchase marijuana from state-sponsored non-profit marijuana treatment centers. Patients can be prosecuted if they possess more than is necessary for 60 days’ use. Employers are not required to accommodate the workplace use of marijuana.
Maine’s Marijuana Legalization Act. This Act permits adults over the age of twenty-one to consume marijuana for recreational purposes, to possess up to 2.5 ounces, and to cultivate six plants for personal use. Interestingly, the Act expressly warns that it does not “shield any adult from federal prosecution.” Users beware!
Although employers may continue to prohibit the possession and consumption of cannabis in the workplace, they are prohibited from refusing to employ individuals who consume marijuana outside the workplace. They may, however, discipline employees who are under the influence in the workplace.
Landlords may not discriminate against a tenant solely because of her consumption of marijuana off-premises. A tenant cannot grow marijuana plants for personal use on the leased premises without the landlord’s written permission.
Maine already permits the medical use of marijuana. Registered patients or caregivers of patients with certain debilitating medical conditions may possess up to 2.5 ounces and cultivate six plants. As with off-duty recreational use of marijuana, employers may not discriminate against an employee solely due to his status as a cardholder, unless failing to do so would cause the employer to lose federal funding or violate federal law. A Maine court has suggested that this provision vests employee with a private cause of action against their employers for wrongful discharge; however, it remains to be seen whether marijuana’s illegal status at the federal level would allow such a lawsuit to proceed. This notwithstanding, an employer is not required to permit the ingestion of marijuana in the workplace or to allow an employee to work while under the influence of marijuana.
In the medical marijuana context, a landlord may not prohibit a tenant from smoking marijuana unless it prohibits all smoking on-premises.
Nevada’s Regulation and Taxation of Marijuana Act. This law legalizes the recreational use of marijuana, regulating it in the same manner as alcohol. Adults over the age of twenty-one may possess up to one ounce of marijuana and cultivate up to six plants for personal use. Like alcohol, driving under the influence of THC is still illegal, and Nevada citizens are prohibited from doing anything under the influence of marijuana that would constitute negligence.
Employers may enact, maintain, and enforce policies prohibiting the use of marijuana in the workplace, just like they can with alcohol consumption. This means employers can prohibit individuals from being under the influence of marijuana while in the workplace.
Landlords may prohibit the cultivation of marijuana in their properties. Landlords may also enforce restrictions on smoking marijuana, but they are not expressly authorized to prohibit other forms of consumption.
This law takes effect on January 1, 2017.
North Dakota’s Compassionate Care Act. This law allows registered patients with debilitating conditions and their caregivers to possess and use marijuana. Debilitating conditions include cancer, PTSD, and chronic back pain. Patients and caregivers must obtain marijuana from registered non-profit compassion centers, and these centers may only dispense a maximum of three ounces of marijuana to any patient or caregiver during a fourteen-day period. Patients located more than forty miles from the nearest compassion center may cultivate up to eight plants. Possession of marijuana in the workplace is still criminalized under North Dakota law.
Analysis. Of these new laws, only two place affirmative restrictions on employers with regard to employees and their use of marijuana. Maine prohibits employers from taking adverse action against employees who consume cannabis recreationally off-duty. Arkansas prohibits employers from taking adverse action against employees because they are, or were, registered medical marijuana users. Eight other states also prohibit adverse employment actions against individuals who are registered to use marijuana for medical purposes (also known as “cardholders”): Arizona, Connecticut, Delaware, Illinois, Minnesota, New York, Pennsylvania, and Rhode Island.
These states do permit taking adverse action if an employee is impaired by marijuana while at the workplace. Therein lies the rub: a drug test for THC – depending upon the method used – can detect the substance in a person’s system thirty days after consumption. Is a person still under the influence of, and impaired by, marijuana at thirty days? (Indeed, testing of hair samples can reveal past consumption 90 days after use!) There is no known dose threshold for impairment by marijuana, as there is for alcohol. A mere positive test may not mean impairment. (Arizona, Delaware, and Minnesota, for example, expressly declare in their medical marijuana laws that a mere positive drug test does not equal impairment. And Pennsylvania has a curious provision that requires both impairment and conduct which falls below the expected standard of care for employees.) If a mere positive does not mean impairment, then terminating the employee might violate prohibitions against terminating for off-duty consumption or for cardholder status.
Recently, the United States Department of Health and Human Services published a summary of the scientific evidence of the effect of THC on human behavior, the central nervous system, and cognitive functioning. Users of marijuana were found to suffer from disorganized thinking, impaired judgment, illusions, hallucinations, agitation, paranoia, and confusion, among other symptoms. Motor control, reaction times, and perception of speed are all adversely affected. Studies indicate cognitive and behavioral impairments last up to twenty-eight days after chronic users stopped consumption. Another study demonstrated that heavy, frequent users scored significantly lower on verbal memory and psychomotor tests even after twenty-four hours of abstinence. Memory deficits can last for seven days following abstinence. Indeed, there is scientific evidence that, for heavy marijuana users, executive functioning, psychomotor speed, manual dexterity, and decision-making remained impaired after twenty-five days of abstinence. It was only after ninety days that deficits in IQ, memory, and information processing speeds returned to normal.
Based upon this survey of scientific evidence by HHS, an employer could take the position that any positive test for marijuana using oral fluid or urine samples reasonably indicates impairment and therefore justifies dismissal, even under these state laws that prohibit discrimination based upon medical cardholder status. Arizona, Minnesota, Delaware, and Pennsylvania present a problem with this approach, since testing for delayed reaction timing, impaired executive function, reduced psychomotor speed, and disorganized thinking is burdensome and resource-intensive. In these four jurisdictions, a prudent employer will want to weigh the benefit of a strict, zero-tolerance policy against the risk of a wrongful discharge lawsuit, assuming – of course – an aggrieved employee even has the right to sue under the medical marijuana statutes – something which is not all that clear, especially considering simple possession of the substance is still a federal crime. (Courts in California, Michigan, Montana, and Washington have already determined that employees cannot sue employers under the state statutes.)
Conclusion. Given marijuana’s continued status as a Schedule I drug under the federal Controlled Substances Act – and this status will not change any time soon – and in light of the empirical literature demonstrating that impairment continues long after the acute effects have worn off, we believe an employer can safely continue to maintain a strict, no-tolerance policy that mandates termination from employment, or refusal to hire, if an individual test positive for THC, particularly if an oral fluid test is used.
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