Connecticut Becomes 19th State to Legalize Recreational Marijuana

Effective July 1, 2021: Adults 21 and older in Connecticut may use and possess recreational marijuana up to 1½ ounces (and up to 5 ounces in a locked container in their home or in their car’s glove box or trunk). The new legislation will also expunge past convictions for marijuana possession.

Retail sales of recreational marijuana in Connecticut are not expected to begin until sometime next year. Additionally, as of July 1, 2023, anyone 21 and older can grow up to six plants in their home (three mature and three immature plants), with no more than 12 plants per household at any time.

Connecticut is now the 19th state to legalize recreational marijuana, following New Mexico, New York, Virginia, and New Jersey in 2021 alone. Despite the increase in states legalizing it, marijuana remains illegal under federal law.

Employers may still continue to enforce drug-free workplaces and the law allows for employers to take adverse action against an employee who is impaired at work. From Governor Lamont’s press release: “This legislation allows employers to continue to enforce drug-free workplaces, and respects the need for employers to maintain workplace safety and to remain in compliance with federal laws and contracts. As such, employers in certain industries, such as manufacturing and healthcare, are considered “exempt” from the employment provisions of this law. The law allows employers to take adverse actions against employees who are impaired at work. The law says that nonexempt employers may not prohibit the off-work use of cannabis or take adverse action against an employee or a potential employee for a positive THC test unless such employer has adopted employment policies stipulating as such. Generally, an employer may not take adverse action against an employee or potential employee for use of cannabis prior to applying for or working at such employer.”

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Philadelphia Joins New York City and Nevada in Banning Pre-Employment Marijuana Testing

Effective January 1, 2022: Philadelphia employers are prohibited from requiring applicants to submit to drug screening for marijuana as a condition of employment. With the new legislation, Philadelphia joins New York City and Nevada, both of whom have similar restrictions in place, as of May 20, 2020 and January 1, 2020, respectively.

The new law exempts certain jobs from the ban on marijuana testing, such as law enforcement, employees who need a commercial driver’s license, healthcare workers, employees who have supervision or care of children or other vulnerable adults, and “any position in which the employee could significantly impact the health or safety of other employees or members of the public.” Additionally, it does not apply to any drug testing required by:

  • federal or state statute or regulation,
  • any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer (requiring drug testing), or
  • where the prospective employer is a party to a valid collective bargaining agreement that requires drug testing

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New York Legalizes Recreational Marijuana

Effective March 31, 2021: Possession and recreational use of up to three ounces of marijuana or 24 grams of concentrated cannabis, such as oils derived from a cannabis plant, by adults 21 and over is now legal in New York. Adults can consume marijuana anywhere it is legal to smoke tobacco, and can also store up to five pounds at home.

Other provisions will take some time. For example, adults will be able to cultivate up to six plants (three mature and three immature) or twelve plants (six and six) for a household with more than one adult, but not until regulations are set for home growing, which can take up to eighteen months.

Users will not be permitted to purchase marijuana from a legal (licensed) retailer for up to a year or more for the state to set up the new mechanism for regulating marijuana. Ultimately, New Yorkers can now legally possess and consume marijuana, but have no legal way of obtaining it for the time being.

Under the new law, “it is unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment” because of his or her legal use of cannabis “in accordance with state law, outside work hours, off of the employer’s premises, and without use of the employer’s equipment or other property.” However, an employer is not be in violation of the law where the employer takes action related to the use of cannabis based on the following:

(i) the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;

(ii) the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or

(iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

The law also creates an automatic expungement of previous marijuana convictions that would now be legal.

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Dissension Aside, Americans Appear United on Marijuana

 

With all the controversy and divisiveness surrounding the 2020 election, Americans appeared united on one subject—legalizing marijuana. In fact, it was one area that was seemingly powerful enough to garner bipartisan support, not an easy feat this (or any) year. According to a Gallup Poll released on November 9th, 2020, 68% of Americans favor legalizing marijuana, doubling the approval rating from 2003. This result is likely due to a combination of lengthy campaigns by medical marijuana supporters and the devastated state economies due to the pandemic. However, while there may be some consensus on broad legalization, there is anything but harmony with regard to testing, accommodations, and CBD use.

Overall, the elections resulted in two additional states approving medical marijuana, Mississippi and South Dakota, with recreational marijuana winning big in New Jersey, Arizona, Montana, and South Dakota. South Dakota even made history in 2020 by becoming the first state to pass both medical and recreational marijuana legislation at the same time.

2020 State Marijuana Legislation

Medical

Mississippi Initiative 65 was approved by an overwhelming majority of Mississippians. Under the Initiative, physicians can prescribe marijuana to patients with certain debilitating medical conditions where he or she believes the benefits of using medical marijuana would “reasonably outweigh potential health risks.” The process includes the physician issuing a certificate to the patient, allowing the patient to obtain a medical marijuana identification card, and then allowing him or her to use marijuana for the time prescribed. Patients may purchase and carry up to 2.5 ounces of marijuana at any given time. Medical marijuana is anticipated to be available in Mississippi by the summer of 2021.

Section 3 of the Initiative briefly discusses employment scenarios, stating that a patient cannot require “accommodation for the use of medical marijuana or require any onsite use of medical marijuana in any public or private correctional institution, detention facility, or place of education or employment.”

Recreational

New JerseyPublic Question 1, a constitutional amendment, was approved for the possession and use of up to 6 ounces of marijuana for adults age 21 and older in New Jersey. It also includes the cultivation, processing, and sale of marijuana. There is currently no language pertaining to the workplace or employers contained in the amendment. However, it is still early, and language could be added in forthcoming regulations.

New Jersey legalized medical use of marijuana in 2010, and is now the first state in the mid-Atlantic region to approve its recreational use. Many anticipate that neighboring states will be soon to follow.

Arizona Proposition 207, known as the Smart and Safe Arizona Act, allows adults age 21 and over to travel with up to 1 ounce of marijuana and grow up to 6 marijuana plants at home. Proposition 207 will become effective once the election is certified, which should be no later than November 30th. However, Arizona shops cannot apply for licenses until January of 2021, after the Arizona Department of Health formulates regulations.

Proposition 207 includes language specifically protecting the workplace. Section 2-2(c) states, “Employers retain their rights to maintain drug- and alcohol-free places of employment.”

Montana Marijuana Legalization and Tax Initiative I-190 approves recreational marijuana possession and use by adults age 21 and over. According to the Initiative, adults can possess, purchase, use, ingest, inhale, or transport up to 1 ounce of marijuana. Adults may also plant or cultivate up to four mature marijuana plants and four seedlings.

Montana included employer protections in the Initiative. Specifically, “Employers are not prohibited from disciplining employees if they violate their workplace drug and alcohol policy or if they work while intoxicated by marijuana.” Medical use has been legal in Montana since 2004.

Both Medical and Recreational

South Dakota – According to Matthew Schweich, deputy director of the Marijuana Policy Project, “South Dakota has made history by becoming the first state to legalize medical marijuana and legalize marijuana for adults on the same day.”

Under Initiative Measure 26, patients suffering from debilitating conditions will be permitted to purchase and possess up to 3 ounces of marijuana from a licensed dispensary. Patient registration cards are expected to be issued by November 18, 2021.

The Initiative states that a qualifying patient must be treated the same as any other person who is prescribed a pharmaceutical medication in any interaction with the person’s employer. The Initiative also notes, “Nothing in this Act prohibits an employer from disciplining an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.”

Under Constitutional Amendment A, recreational marijuana was also approved in South Dakota. Adults 21 and older will be permitted to possess and distribute up to 1 ounce of marijuana. Additionally, they will be allowed to cultivate up to 3 cannabis plants.

Constitutional Amendment A also addresses employer concerns in that it does not require that an employer permit or accommodate marijuana usage or affect an employer’s ability to restrict his or her employees’ use of marijuana.

Both measures are set to become effective on July 1, 2021.

Where We Stand Today

Post-election, there are 35 states that have now approved marijuana for medicinal use and 15 states that have approved marijuana’s use recreationally. Washington DC permits both. Within the past year, there has also been the implementation of Nevada and New York City’s bans on pre-employment testing for marijuana. With the significant budget shortfalls following the pandemic’s devastating impact and the enormous amount of money involved in the marijuana industry, more states across the country are expected to consider marijuana legislation in 2021.

Marijuana, of course, remains a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. However, there is a chance that could change sooner rather than later. In December of 2020, the House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (“MORE Act”), which would remove marijuana from the list of scheduled substances and clear the way to erase nonviolent federal marijuana convictions. It is yet to be seen what the Senate will do about the MORE Act, but there could be more pressure to make a change. Supporters, including the powerful marijuana industry and struggling state governments argue that the marijuana industry creates much-needed jobs and generates much-needed revenue in an economy that desperately needs both. Whenever billions of dollars are involved as it is here, it means big business and more power. How that power will affect the federal government’s stance on marijuana is yet to be seen.

It is early in the process for the five states that approved marijuana this year. Many still have to go through numerous legislative steps until there is an effective law. Also, despite the overwhelming support in most states, there is still strong opposition, which could lead to legal challenges. Finally, the involved states’ various departments of health must determine appropriate regulations and guidance before any laws go into effect.

Hire Image understands drug screening in the workplace and employers’ rights as they pertain to drug free workplace policies and drug testing, while remaining compliant with state laws. The uncertainty surrounding marijuana’s status as legal or not, CBD use, and an employer’s obligation to provide accommodations almost guarantees additional legislation and caselaw in 2021 to determine the parameters of the future of drug screening. As always, we strive to be your trusted source for background checks and drug screening. Contact us today to get your questions answered. For more information on Medical or Recreational Marijuana, and whether they affect your state, visit our resource guide at the Hire Image Resource Library.

Utah Medical Marijuana Law Remains Undecided, Despite Being Voted On

Utah lawmakers are working to revise Proposition 2, a voter-approved medical marijuana law.  A special session has been set for this coming Monday, December 3rd to review a “compromised bill.”  If approved, this new law would replace the ballot measure that was approved on November 6th.

Changes include removing the provision for growing your own marijuana and also creating a state-run dispensary model.  The compromise is being made among marijuana proponents, including the Utah Patients Coalition and the Libertas Institute, and opponents, including the Utah Medical Association and The Church of Jesus Christ of Latter-day Saints.  Supporters argue the new bill would help preserve public safety, while providing relief to patients.

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Another Election Day Winner: Marijuana

Out of four states that had marijuana on the ballot, three of them voted for legalization on Tuesday. Michigan legalized marijuana for recreational use (effective date in December, 2018), becoming the tenth state, along with Washington D.C., to do so, while Utah (effective date in December, 2018) and Missouri (effective December 6, 2018) legalized it for medical use, joining 30 other states and Washington D.C.  North Dakota, the fourth state with marijuana on its ballot, voted against the legalization for recreational use (medical use has been legal there since 2016).

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