A Mid-Year Compliance Report: The Impacts of Marijuana Legalization

By Michael Klazema on 8/4/2020

In 2012, Colorado and Washington made history by becoming the first two states in the country to legalize the recreational use of marijuana. Since then, the cannabis laws in the United States have become a confusing patchwork of variations. At this point, 11 states have fully legalized cannabis, for both medical and recreational purposes. Another 13 have legalized medical marijuana and decriminalized recreational use, while 15 more have legalized medical cannabis use but have not passed decriminalization legislation for recreational cannabis. There are also three states where marijuana is decriminalized, but technically remains fully illegal. The remaining 11 states continue to outlaw and criminalize cannabis use.

With every state’s legislative stance on marijuana being different at this point, it has become more challenging for employers to determine precisely how the changing laws might impact their policies for employee drug testing. Also confusing is the fact that there tends to be some lag time between when a state legalizes or decriminalizes marijuana and when the law change actually goes into effect. For instance, Michigan voters approved a proposal in November 2018 to legalize recreational marijuana use, but it wasn’t until December 2019 that the sale of recreational marijuana was allowed to begin in the state.

Here is a rundown of recent legislative changes on the marijuana front that employers should know about heading into the back half of 2020:

  • Effective as of May 10, it is illegal in New York City for most employers to conduct pre-employment drug tests for marijuana use. Marijuana testing is still permitted for “safety-sensitive” jobs or for positions where pre-employment marijuana testing is already specifically required by law. All other NYC employers have been instructed to remove marijuana/cannabis from their drug testing panels. New York has legalized medical marijuana and decriminalized cannabis but has not fully legalized the drug yet.

  • In Nevada, a law similar to the New York City ordinance went into effect at the beginning of the year. Unlike the NYC regulation, the Nevada law does not prohibit pre-employment drug tests that check for marijuana. However, the law does, in most situations, bar employers from rejecting candidates who test positive for cannabis. Nevada’s marijuana decriminalization law also went into effect this year, on July 1, and the state has shared plans to start automatically expunging minor marijuana offenses.

  • Other states are giving employers the green light to test for marijuana use and reject candidates based on cannabis testing results. In Utah, for instance, the legislature recently amended the state’s 2018 medical marijuana law to affirm that private employers are still allowed to maintain zero-tolerance policies for the use of marijuana in the workplace, can still test all candidates for the drug, and are not required to make exceptions or accommodations for employees or candidates who use medical marijuana.
  • Ralph Northam, the governor of Virginia, signed a bill into law on May 2020 decriminalizing the possession of up to one ounce of marijuana. The law officially went into effect on July 1. Previously, the possession of anything greater than half an ounce of marijuana was considered a criminal violation punishable by a fine of up to $500 and up to 30 days in jail, for a first offense. Subsequent offenses were considered Class 1 misdemeanors. Possession of less than one ounce of marijuana is now only punishable by a civil penalty not to exceed a $50 fine. The law also makes it easier for individuals convicted of marijuana laws in the past to petition for expungement.

The key takeaway from these recent legislative shifts is that employers need to make sure they are aware of what the laws in their state or municipality have to say about marijuana. Consider consulting with an attorney to determine where your legal obligations stand if you intend to use drug tests for pre-employment purposes or random on-the-job screenings. At the same time, pay close attention to marijuana convictions that come up in pre-employment background checks. As marijuana decriminalization and legalization continue to expand nationwide, expungement is becoming more common as well. While expunged offenses shouldn’t show up on your background checks, you might consider not making hiring decisions based on minor marijuana offenses, simply due to how the legal viewpoint of those offenses is changing by the minute.



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