By Cary Burke
This past election, voters in California, Maine, Massachusetts, and Nevada approved ballot measures to legalize marijuana for recreational purposes. As discussed in a previous blog post, California’s ballot measure passed overwhelmingly in favor of legalization. Below, we discuss Maine, Massachusetts, and Nevada’s approved ballot measures, and whether those measures affect an employer’s ability to enact and enforce policies restricting the use of marijuana by employees.
Maine voters approved "Question 1," which allows for the recreational cultivation, possession, use, and sale of marijuana to adults over the age of 21. Maine’s new law does not affect an employer’s ability “to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.” However, an employer is prohibited from refusing to employ a person 21 years of age or older “solely for that person’s consuming marijuana outside of” the employer’s property. Maine employers should seriously consider whether drug testing applicants for employment is necessary and consistent with business necessity, as rejecting an applicant solely because they use marijuana could lead to liability.
Massachusetts voters voted “yes” on "Question 4," which legalizes the recreational use, cultivation, possession, and sale of marijuana. Like the new Maine measure, Massachusetts’s new law does not require an employer to permit or accommodate the use of marijuana in the workplace. Nor does the new law “affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”
Nevada voters approved "Question 2," which legalizes the recreational possession, cultivation, sale, and use of marijuana for adults over the age of 21. Nevada’s new law does not prohibit employers from “maintaining, enacting, and enforcing a workplace policy prohibit or restricting” the use of marijuana. In addition, Nevada employers may conduct workplace drug testing in limited circumstances, such as upon a contingent offer of employment or if the employer has a reasonable suspicion an employee is impaired at the workplace.
Currently, eight states allow for the possession, cultivation, sale, and use of recreational marijuana, and approximately half of the states have legalized marijuana for medicinal purposes to varying degrees. However, marijuana is still classified as a "Schedule I Drugs" and remains illegal under federal law, and the above-listed sates still allow employers to craft policies limiting marijuana use by employees. With the patchwork of state marijuana laws continuing to change, employers should consult with able counsel to enact sensible drug polices in the workplace.