More states – Michigan, Missouri, and Utah – legalized the use of marijuana in ballot measures on Election Day, Nov. 6. Employers in these states need to review their drug-use policies and communicate any updates to employees.
Michigan voters approved recreational marijuana, while medical marijuana was legalized in Missouri and Utah. A ballot measure to legalize recreational marijuana in North Dakota failed. Citizens in Arkansas and Missouri voted to raise their respective state’s minimum wage.
Marijuana Legalization
Michigan became the 10th state to legalize marijuana for adults 21 and older, joining Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, Washington state, and Washington, D.C., but Health and Productivity Michigan opposed the ballot measure, predicting it would:
- Decrease work safety and productivity with workers under the influence.
- Increased absenteeism from work.
- Increase positive drug test results at work.
Employers still can have zero-tolerance drug policies, and most do. Some employers have stopped testing applicants for marijuana, though they will do so after accidents or when employees have glazed eyes or smell like weed. It’s a tight labor market right now and finding applicants who can pass a drug test is difficult.
Some states have laws prohibiting employees from being disciplined for lawful activities performed outside of work, but whether these laws apply to individuals smoking marijuana off-duty in states that have legalized marijuana is an open question. Using marijuana is still illegal under federal law.
Missouri and Utah legalized medical marijuana, bringing the number of states to approve such use to 32, according to U.S. News & World Report. Before the vote in Utah, proponents and opponents of the ballot measure agreed last month on a plan to enact legislation letting patients use cannabis, Forbes reported.
Doctors in Missouri will be able to prescribe marijuana as a medication for cancer, chronic migraines, epilepsy, glaucoma, and a catch-all category of any chronic or debilitating condition for which the doctor recommends marijuana. This will leave the prescription of cannabis largely up to doctors’ discretion.
Missouri employers will need to review their workplace policies and adjust them for medical marijuana once the state has regulations in place. Employers don’t have to tolerate someone being high at work. But before taking action against someone who uses medical marijuana, consider whether there is a reasonable accommodation.
To predict how the courts may rule on when accommodations are required is like ‘reading tea leaves.’ Medical marijuana laws typically don’t provide a right to accommodate employees. But in July 2017, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim.
So employees have the right to seek a reasonable accommodation under Massachusetts law prohibiting disability discrimination, the court ruled.
Let us know what you think.