The races for president and congress may have received the bulk of the public's attention in November, but the 2020 ballot also contained numerous state initiatives related to marijuana and other drugs. All of these ballot measures passed and now one-third of the population of the U.S. lives in a state that has legalized recreational cannabis. Additionally, 70% of all states have now legalized cannabis for medical use. These changes are substantial and will have an impact on workplace drug testing if you do business in these states. Here are the verdicts on those initiatives and what they mean for you.
Recreational Marijuana Initiatives
Four more states — Arizona, Montana, New Jersey and South Dakota — have joined their counterparts in legalizing recreational marijuana. Keep in mind that currently under federal statutes, marijuana is still classified as a Schedule II drug, and its use is considered illegal.
The passing of Proposition 207 legalized recreation marijuana use, consumption and transfer in Arizona for those over the age of 21. The legislature must put the regulatory framework for cultivation and sales in place by April 2021 and sales are not expected to begin until June 2021. Important to note for employers:
- Driving while impaired by marijuana is strictly prohibited.
- Employers can prohibit or regulate marijuana use, consumption or transfer when it occurs on business property.
- There is no requirement for employers to accommodate use, consumption or transportation at the workplace.
Montana voters passed two initiatives, Initiative 190 and Constitutional Initiative 118. Initiative 118 legalizes participation in the marijuana market for adults age 21 and over. Initiative 190 will establish a system for cultivation and sales that will occur in two phases beginning on January 1, 2021, and October 1, 2021.
Initiative 190 also affirms that employers:
- Are not required to permit or accommodate recreational marijuana use in the workplace
- Retain the right to discipline employees who violate workplace drug and alcohol policy
- May discipline employees who work while intoxicated by marijuana
- Can deny applicants who violate the workplace drug and alcohol policy
- May take adverse employment action against employees who violate workplace drug and alcohol policy
Question 1 legalized the use of marijuana for adults aged 21 in New Jersey and also created a sales tax on recreational marijuana. There is no regulatory framework and currently no additional guidance for employers. That may come later in the year when the legislature attempts to create and pass a regulatory framework.
Amendment A legalized recreational marijuana use for anyone 21 and over, but there are restrictions. The specific regulatory framework is expected to pass during the next legislative session. Of interest to employers in Amendment A:
- Marijuana use is prohibited while performing tasks if it might constitute malpractice or negligence.
- As an employer, you do not have to provide accommodations for recreational marijuana use.
- You may still restrict an employee’s use of marijuana at work.
Medical Marijuana Initiatives
Two states, Mississippi and South Dakota passed medical marijuana initiatives.
On this year’s election ballot, South Dakota became the first state to legalize medical and recreational marijuana use at the same time. Measure 26 creates a medical marijuana program for physician-certified patients that allows them to grow a maximum of three plants and possess up to three ounces. As with Amendment A, they are prohibited from undertaking a task which could result in malpractice or negligence. For employers, Measure 26 offers this additional guidance:
- Employers with obligations under federal law are exempt.
- Driving while intoxicated with medical marijuana is prohibited.
- You do not have to permit ingestion of medical marijuana in your workplace, nor do you have to allow workers to continue to work if they are under the influence.
- Concerning drug testing, the presence of marijuana metabolites or components in insufficient concentration to cause impairment is not enough to consider a worker under the influence.
The passing of Initiative 65 created a medical marijuana program in Mississippi for individuals with debilitating conditions. The program goes into effect on July 1, 2021, and regulations will also be issued by that date.
Initiative 65 contains no further guidance for employers.
Magic Mushrooms and Drug Decriminalization Initiatives
Interesting initiatives from Oregon and the District of Columbia have legalized possession and distribution of magic mushrooms and other drugs.
With the passing of Measures 109 and 110, Oregon has decriminalized most drug use. Measure 109 allows state-licensed service providers to administer psilocybin-producing mushrooms and fungi, known as magic mushrooms, to adults aged 21 and over. Users will be able to buy, possess and consume psilocybin at these service centers but must remain there under the supervision of a facilitator. The state will develop standards for dosing, labelling and packaging within two years.
Oregon’s Measure 110 is designed to decriminalize drug use and get more people into treatment rather than jail. Possession of Schedule I to Schedule IV drugs such as heroin and cocaine will now result in a $100 fine and a health assessment at an addiction recovery center. The new law goes into effect on February 1, 2020.
District of Columbia
The passing of Initiative 81 virtually ensures that the non-commercial cultivation, distribution, possession and use of entheogenic plants and fungi such as magic mushrooms are considered the lowest law enforcement priority. Other parts of the initiative defined entheogenic plants and fungi as those which contain ibogaine, dimethyltryptamine, mescaline, psilocybin and psilocyn. It will become law after a 30-day congressional review period.