United States: Marijuana Legalization Efforts Enjoy Success, Demonstrating Major Shift In Approach To Drug Regulation And Use

Last Updated: November 15 2016
Article by Nancy N. Delogu and Eunju Park

Election Day 2016 proved to be a historic occasion for initiatives favoring expanded access to marijuana. On November 8, California and Nevada joined West Coast early adopters Alaska, Oregon, and Washington in choosing to legalize marijuana for adult recreational use. On the East Coast, Massachusetts became the first state to legalize marijuana for adult recreational use. Whether Maine will join Massachusetts in approving recreational marijuana use in New England is yet undecided, as an initiative to legalize is currently too close to call with 91 percent of the vote counted, according to local press. Arizona voters, however, rejected an initiative to legalize marijuana sales for recreational purposes.

Election night also saw voters approve new laws expanding or permitting the lawful use of marijuana for medical purposes in Arkansas, Florida, Montana, and North Dakota.

Despite these efforts, marijuana remains a Schedule I drug under the federal Controlled Substances Act, which means that it is neither lawful to use or possess as a matter of federal law. And although none of these new legalization efforts aim to change state employment law, employers in the affected states will no doubt be faced with a chorus of questions about how the changes will affect enforcement of their workplace substance abuse policies.

Initiatives To Authorize Recreational Use of Marijuana

California (Proposition 64)

After a 20-year period permitting almost any adult to use marijuana for medical reasons, California voters cast ballots in favor of Proposition 64, legalizing the recreational use of marijuana by adults. Although California's medical marijuana initiative passed in 1996, voters had rejected efforts to legalize the drug for recreational use as recently as 2010. The new law allows adults 21 years and older to possess up to 28.5 grams of marijuana and 8 grams of concentrated marijuana, and to grow up to six marijuana plants at home in a locked area not visible from a public place.

The law also changes the name of the state's Bureau of Medical Cannabis Regulation to the Bureau of Marijuana Control, and the renamed agency will adopt regulations governing the cultivation and retail sale of marijuana throughout the Golden State. Advocates of the new legislation note that the new law will require regulated marijuana businesses to come into compliance with state water use and environmental regulations; marijuana "grow" operations notoriously consume large quantities of water and electric power.

The measure also creates two new taxes, levied on cultivation ($9.25 per ounce of flowers and $2.75 per ounce of leaves) and another on retail sale of marijuana products (15%). Revenues collected from the taxes will be placed into the California Marijuana Tax Fund. A majority of the Fund will be directed towards "job placement, mental health treatment, substance use disorder treatment, system navigation services, legal services to address barrier to reentry, and linkages to medical care for communities disproportionately affected by past federal and state drug policies." The remaining tax proceeds will go towards helping state and local law enforcement, medical marijuana research, youth substance abuse prevention, and environmental restoration, cleanup, and enforcement efforts. The new also law permits taxation of marijuana sales by local governments.

In an unusual step, the law allows the state to reconsider criminal penalties already imposed on residents for activities made lawful by Proposition 64. Individuals who are currently incarcerated based on convictions for now-legal marijuana-related misconduct are eligible for resentencing, provided the state determines the person does not pose a risk to public safety. California's courts may also re-designate or dismiss such offenses from the criminal records of persons who have completed their sentences.

The new law does not change existing laws that make it unlawful to operate a vehicle while impaired by marijuana, however, nor does it excuse any act that would be negligence or malpractice if conducted while under the influence of the drug.

Finally, the new law does not change employment law in California. Proposition 64 specifically states that it does not require employers "to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace," or limit employers' ability to "have policies prohibiting the use of marijuana by employees and prospective employees." Employers are also still free to prohibit or restrict any actions or conduct otherwise permitted under the new law on their privately owned property. The Proposition also specifically states that it does not prevent employers from complying with state or federal law.

Massachusetts (Question 4)

Massachusetts voters passed Question 4, legalizing possession up to one ounce of recreational marijuana outside of their residences, possession up to ten ounces of marijuana inside their residences, and cultivation of up to six marijuana plants in their residences. The measure creates a Cannabis Control Commission of three members appointed by the state Treasurer, which will generally administer the law governing marijuana use and distribution, promulgate regulations, and be responsible for the licensing of marijuana commercial establishments. The measure also creates a Cannabis Advisory Board charged with adopting regulations governing licensing qualifications, security, record-keeping, health and safety standards, packaging and labeling, testing, required inspections, and such other matters as the Commission considers appropriate.

The proceeds of retail sales of marijuana and marijuana products will be subject to the state sales tax and an additional excise tax of 3.75%. Localities in Massachusetts may impose a separate tax of up to 2%. Revenue received from the additional state excise tax, license application fees, and civil penalties for violations of this measure will be deposited in a Marijuana Regulation Fund.

The measure does not require employers to permit or accommodate conduct otherwise allowed by the measure in the workplace, and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.

Nevada (Question 2)

Nevada voters passed Question 2, legalizing the possession and use up to an ounce of marijuana by adults aged 21 or older. Pursuant to the new law, Nevada will establish a regulatory framework on the sale of marijuana and impose a 15% excise tax on all marijuana products, with the tax revenue going towards supporting K-12 education. Individuals who do not live within 25 miles of a retail facility selling marijuana store will be permitted to grow up to six marijuana plants on their own property. The Nevada Department of Taxation will oversee the licensing of marijuana retails stores, and marijuana cultivation, manufacturing, and testing. For the next 18 months, only businesses that currently are certified to provide medical marijuana to Nevada residents will be eligible to apply for licenses to sell marijuana on a retail basis, or to operate cultivation and production facilities.

Nevada's measure does not prohibit either public or private employers from maintaining, enacting, and enforcing workplace policies prohibiting or restricting actions or conduct otherwise permitted under the measure.

Maine (Question 1)

The morning following the election, the outcome was too close to call on Maine's "Question 1", an initiative to legalize, regulate, and tax marijuana in Maine as an agricultural product. (According to Ballotpedia, proponents of the new law outspent opponents by a factor of nearly 14 to 1.) The measure would allow individuals over the age of 21 to possess, use, or transport up to 2.5 ounces of marijuana and to grow up to six mature or twelve immature marijuana plants. The measure also provides for the licensure of retail facilities and marijuana social clubs. If the initiative is enacted, the Maine Department of Agriculture, Conservation and Forestry will regulate the cultivation and sale of marijuana in Maine, which will be taxed at the relatively low rate of 10 percent. Ninety-eight percent of the sales taxes collected would be deposited in the general fund, while 2 percent would be distributed to cities and towns through the Local Government Fund.

The measure does not require an employer to permit or accommodate the possession or use of marijuana in the workplace and does not affect the ability of employers 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. Many Maine employers are already limited in their ability to enforce drug-free workplace policies, however, as the state has one of the nation's most restrictive drug-testing laws and a medical marijuana statute that prohibits employers from refusing to employ or otherwise penalize a person solely for that person's status as a qualifying medical marijuana patient unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding. Employers may prohibit the use of marijuana on the employer's premises (even if used for medical purposes) if the employer prohibits all smoking on the premises and posts notices to that effect. Employers are not required to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.

Arizona (Proposition 205)

Arizona voters rejected Proposition 20, which would have allowed adults over 21 to buy and possess up to an ounce of marijuana, and to grow up to six plants at home. Advocates intended the state to create a new government agency to regulate recreational marijuana cultivation, manufacturing, testing, transportation, and sale, and to impose a 15% tax on the proceeds from marijuana (and marijuana product) sales.

The failure of Proposition 205 does not affect Arizona's existing medical marijuana law, adopted some years ago, which does contain certain protections for workers who use marijuana for medical reasons. Driving while impaired by marijuana remains illegal, as is performing any task while impaired that would constitute negligence (or malpractice) and providing marijuana to individuals under the age of 21.

Medical Marijuana

Arkansas (Issue 6)

Arkansas voters were set to consider both a state constitutional amendment to legalize physician-certified medical marijuana (Issue 6), and a proposed act to implement that directive (Issue 7). On October 27, however, a divided Arkansas Supreme Court disqualified Issue 7 from appearing on the ballot on the ground that its supporters failed to gather enough signatures. Issue 6 remained on the ballot, and voters voted to pass the amendment, setting the stage for the creation of a medical marijuana program.

The constitutional amendment approved the establishment of a system for the cultivation, acquisition, and distribution of marijuana for qualifying patients through licensed medical marijuana dispensaries and cultivation facilities, and granted those dispensaries and facilities limited immunity. Qualifying patients, as well as dispensary and cultivation facility agents, will not be subject to criminal or civil penalties or other forms of discrimination under state law for engaging in or assisting with the patients' medical use of marijuana.

The amendment specifically states that "[a]n employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual's past or present status as a qualifying patient or designated caregiver." However, it also makes clear that an employer is not required to accommodate the ingestion of marijuana in a workplace or to tolerate an employee working while under the influence of marijuana.

Florida (Amendment 2)

Florida enacted Amendment 2, a provision permitting marijuana to be used as a treatment for patients with a diagnosis of cancer, epilepsy, glaucoma, HIV, AIDS, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn's disease, Parkinson's disease, and multiple sclerosis. In addition, licensed physicians will be permitted to certify patients to use medical marijuana if they are diagnosed with some "other debilitating medical conditions of the same kind or class as or comparable to those enumerated." The law expands Florida's current medical marijuana law, passed in 2014, which permits the use of non-smoked, low-THC (the psychoactive ingredient that causes a "high") marijuana for qualified residents. Amendment 2 does not immunize individuals from prosecution for violations of federal law or protect the non-medical use, possession, or production of marijuana by any person. The provision specifically states that employers need not accommodate any on-site medical use of marijuana; it is silent as to whether employers can otherwise enforce neutral drug-free workplace policies against medical marijuana users.

Montana (I-182)

Montana voters have expanded their current medical marijuana law by enacting an initiative allowing a single treating physician to certify medical marijuana for a patient diagnosed with debilitating medical conditions, including chronic pain and post-traumatic stress disorder. The new law eliminates the current limit of three patients for each licensed provider, allows providers to hire employees to cultivate, dispense, and transport medical marijuana, and repeals the requirement that physicians who provide certifications for 25 or more patients annually be referred to the board of medical examiners.

Montana's law does not require employers to accommodate the use of marijuana by a registered cardholder. Employers are also not prohibited from including in any employment contract a provision prohibiting the use of marijuana; no cause of action for wrongful discharge or discrimination is created by an employer's failure to accommodate or tolerate medical marijuana use.

North Dakota (Measure 5)

North Dakota voters have passed Measure 5, adding a new chapter to North Dakota law providing for the medical use of marijuana for defined debilitating medical conditions, including cancer, AIDS, hepatitis C, ALS, glaucoma, and epilepsy. The Act creates procedures for monitoring, inventorying, dispensing, and cultivation of marijuana to be regulated and enforced by the Department of Health. A qualified patient may be dispensed up to three ounces of usable marijuana.

Participation in the medical marijuana program does not relieve the qualified patient or primary caregiver from the possibility of being penalized for possessing, distributing, or transferring marijuana or using marijuana in the workplace.

What Now for Employers?

Marijuana remains a Schedule I drug under the federal Controlled Substances Act; nevertheless, it is likely that many workers will assume that state legalization renders workplace policies against such use ineffective. As such, employers should clearly communicate their position – and perhaps to update their policies – to workers to ensure understanding. Employers with drug-free workplace policies should consider the following:

  • Make clear that as marijuana is still illegal under federal law, it is considered an illegal drug under the drug-free workplace policy. If an employer wishes to (or is required to) stand by its current drug-free workplace policy, ensure that it is clear to workers that the use of marijuana is a policy violation, and that the employer reserves the right to take adverse action based upon such use.
  • Consider risks of negligence actions and safety concerns that may be caused by employee marijuana use, and take steps to minimize those risks. None of the states that have legalized marijuana have eliminated the risk that an employer could be found responsible for the actions of an employee who operates a vehicle with marijuana in his or her system, or who causes harm to co-workers or third parties while impaired.
  • Have discussions with vendors regarding testing protocols and how positive marijuana tests will be handled and reported where medical marijuana is approved. In the event of a positive marijuana test, medical review officers should be instructed to have a discussion with an employee regarding whether he or she has a state-issued medical marijuana identification card, so that the employer can consider how to respond in states where employee protections exist.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nancy N. Delogu
Eunju Park
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions