Marijuana For The Win Following The 2020 Election

The 2020 election saw the passage of ballot initiatives involving the legalization of marijuana in five more states — Arizona, Mississippi, Montana, New Jersey, and South Dakota. Of those, recreational marijuana was approved in Arizona, Montana, and New Jersey, joining 14 other states and the District of Columbia. Voters in Mississippi approved medical marijuana. And, South Dakota voters approved both medical and recreational marijuana laws. Like many medical and recreational marijuana laws already on the books, the effect on the employment relationship of the most recent additions to the marijuana legalization list varies from state to state:

Arizona: Arizona has had a medical marijuana law on the books since 2010, which prohibits employers from discriminating against medical marijuana patients. The new law authorizing recreational marijuana does not add any additional restrictions on employers and makes clear that employers may still have policies prohibiting the use of or being under the influence of recreational marijuana in the workplace.

Mississippi: The Mississippi law specifically addresses employment and does not require (i) accommodation for the use of medical marijuana, or (ii) any on-site use of medical marijuana at work. It also does not change “existing drug testing laws, regulations, or rules.”

Montana: The new Montana law does not contain any employer restrictions and specifically states that employers maintain the right to enforce drug-free workplace policies, including refusal to hire if an applicant tests positive for marijuana.

New Jersey: Medical marijuana is already legal in New Jersey and the medical marijuana law there already prohibits employers from discriminating against employees with a medical marijuana prescription. The new law authorizing recreational marijuana does not provide any additional employee protections.

South Dakota: The South Dakota ballot initiative does not prohibit employers from restricting the use of marijuana in the workplace or from disciplining employees who come to work under the influence. However, it does require employers to accommodate employees who have a valid prescription for medical marijuana and provide “all the same rights under state and local law” as a person prescribed prescription drugs.

The Bottom Line for Employers: The list of states with some sort of marijuana legalization law keeps growing and it is important to stay up to date. As the most recent ballot initiatives discussed above illustrate, employers’ obligations under these laws vary greatly from state to state, in much the same way paid sick leave and vacation laws vary from state to state.  Especially for employers who operate in multiple states, it continues to be important to review and update existing drug free workplace and testing policies to take into account this patchwork of statutory regulation. A one size fits all marijuana policy may no longer work.