Medical or recreational marijuana use is being decriminalized or legalized in a growing number of US states. In 2016, voters in California, Maine, Massachusetts, and Nevada passed referenda legalizing the recreational use of the drug, while Arkansas, Florida, Montana, and North Dakota either introduced or expanded policies legalizing it for medical purposes.
Last week, Vermont became the first state to legalize the possession and consumption of recreational marijuana through the legislative process, though the commercial sale of the drug remains prohibited (residents are allowed to grow up to six plants for personal use). At Lexology, Vorys Sater Seymour and Pease attorney Michael C. Griffaton notes that Vermont’s law, which comes into effect July 1, does not require employers to permit the use of marijuana in the workplace or on their premises and “does not create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana.”
New Jersey may follow in Vermont’s footsteps this year. The Garden State has had a medical marijuana law on the books since 2010, but former governor Chris Christie, a staunch opponent of legalization who came into office shortly after that law was passed, took action to limit its applicability, such as tightening restrictions on what medical conditions qualified for a medical marijuana prescription. Newly-elected governor Phil Murphy, who campaigned on a promise to liberalize the state’s marijuana policies, took the first step in that direction last week with an executive order aimed at easing the regulations imposed by his predecessor, the New York Times reported.
Murphy has indicated that he is in favor of legalizing recreational marijuana as well, which he believes would help combat the ills of mass incarceration and racial bias in the criminal justice system. Earlier this month, New Jersey Senator Nicholas Scutari introduced a bill in the state Senate that would legalize the possession and personal use of limited amounts of marijuana and establish a regulatory body to control its legal sale and taxation in the state. The bill also addresses employers’ concerns about marijuana use in the workplace, attorneys from the law firm Porzio Bromberg & Newman explain at Lexology:
The bill explicitly states that employers do not have to accommodate the use or possession of marijuana in the workplace. In addition, employers may have policies that prohibit marijuana use or intoxication during working hours. …
The bill makes it unlawful for an employer to take any adverse employment action against an employee based on an individual’s use of marijuana, unless the employer has a rational basis for doing so. Therefore, the bill would affect an employer’s ability to discipline or discharge an employee due to the individual’s off-duty use of marijuana.
A complementary bill introduced this week in the state Assembly would allow residents to grow marijuana at home in limited quantities if recreational marijuana becomes legal in the state, while also capping the number of dispensaries across the state at 80. Public opinion among New Jerseyans is split on whether full legalization is a good idea: A recent statewide survey found that just 42 percent favored legalizing the sale and use of recreational marijuana, though another 26 percent said it should be decriminalized.
New York State is also weighing the legalization of recreational marijuana. In his state budget address earlier this month, Governor Andrew Cuomo urged lawmakers to approve a feasibility study on how marijuana legalization in neighboring states would likely affect New York, which already allows medical marijuana, and what the consequences would be if the state relaxed its marijuana law further to allow recreational use.
Marijuana is a more difficult drug for employers to monitor and regulate than alcohol, because the drug tests currently available only show whether a person has used it in the past month or so, not whether they are currently impaired. In the context of medical marijuana, courts are showing an inclination toward giving employees the benefit of the doubt: A judge in Massachusetts ruled last summer that employers could not terminate medical marijuana users solely on the basis of a failed drug test. The growing number of jurisdictions where marijuana is legal will challenge many employers to rethink their drug-free workplace policies in the coming years and figure out ways to accommodate employees’ off-hours marijuana use without jeopardizing safety and productivity in the workplace.