The New York City Council recently passed a law that bans marijuana drug testing in the workplace with a few exceptions. This marks a transformative change for marijuana legislation and several states are making proposed changes to their own laws. We’ve highlighted a few of the proposed changes for Massachusetts, Minnesota and Missouri for you. While none of these bills have passed yet, it provides a snapshot of what different legislatures are thinking around medical marijuana and employers’ right to test.
Pertaining to protections for medical marijuana users in the workplace. Employers may not discriminate against employees/applicants based on the individual's use of medical marijuana outside of the workplace.
No one shall discharge, cause to be discharged, or otherwise discipline or discriminate against an employee or applicant based on the reason that the individual is a user of medical marijuana outside of the workplace. Pursuant to protections against discrimination on the basis of disability.
Recreational marijuana. Employers cannot discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person based upon an individual's status as a medical marijuana patient, a medical marijuana patient's positive drug test for cannabis components or metabolites (unless the patient used, was impaired, etc. by medical marijuana or a product thereof while on work premises, during work hours, or while operating an employer's machinery, vehicle, or equipment).
Registered patients that are required to undergo drug testing may present their registry verification as part of their explanation for a positive drug test result. This does not apply if it would cause an employer to violate federal regulations or state laws, or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.
Employers have a right of action against an intoxicated person who incurs pecuniary losses. Employers cannot refuse to hire an applicant or discharge/discipline an employee because of the use of lawful consumable products off the premises of work and during nonworking hours (this includes cannabis). Nothing limits an employer's ability to discipline or discharge employees for marijuana use, possession, etc. during working hours, on work premises, or while operating an employer's vehicle, machinery, or equipment.
Employers may not require or request applicants to undergo cannabis testing (or drug and alcohol testing solely for the purpose of determining the presence of cannabis) as a condition of employment unless otherwise required by state or federal law. Employers cannot request or require employees or applicants to undergo cannabis testing on an arbitrary or capricious basis, or on a random selection basis.
Employers can require employees to submit to reasonable suspicion testing by a laboratory if the employers has reasonable suspicion that the employee is on the employer's premises or operating the employer's vehicle, machinery, or equipment while under the influence of or impaired by cannabis or has violated the employer's written work rules prohibiting cannabis use, etc.
Employers can enact or enforce written work rules prohibiting cannabis use, possession, etc. while the employee is working or while an employee is on the employer's premises or operating the employer's vehicle, machinery, or equipment in a written policy.
Recreational marijuana legalization. Employers are not required to permit/accommodate the use, etc. of marijuana in the workplace. Employers can have policies restricting the use of marijuana by their employees.
Recreational marijuana legalization. Employers are not required to permit or accommodate the use, etc. of marijuana in the workplace. Employers retain their ability to have policies restricting the use of marijuana by employees. Employers can prohibit or regulate the possession, consumption, use, display, transfer, distribution, sale, transportation, or growth of marijuana on their property.
Employers are prohibited from discriminating in hiring, firing, and workplace discipline against medical marijuana patients who comply with state law unless the employee is impaired at work or unless the employer contracts with the federal government.