Industry Insights

Day with DISA Addresses Marijuana Laws and Strategies

Day with DISA 2020 offered attendees a chance to learn more about the ever-changing marijuana laws that vary state-by-state. Hosted by DISA Global Solutions, this virtual drug testing symposium helped employers get expert advice on building a drug testing policy that fits the needs of their workplace while also abiding by state laws. Faye Caldwell, attorney at law and managing partner at Caldwell Everson PLLC, presented “Marijuana: Laws and Strategies” that discussed the recent changes following the 2020 election and how we’re beginning to see a shift towards the legalization of marijuana across the U.S. 

If you didn’t get the opportunity to attend the Day with DISA conference, or if you would like to review this presentation again, you can download or watch it using the link below.

marijuana laws and strategies

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

What’s Changed?

For the first time ever, all states that had measures in the 2020 election have passed, which gives a significant indication as to where the views on the legalization of both medical and recreational marijuana within the U.S. stand. The following measures are new and are as follows:

1) Mississippi Initiative Measure 65 (Constitutional Amendment) – Medical marijuana

· Mississippi Department of Health (DOH) to adopt final rules and regulations by July 1, 2021.

· DOH to begin issuing ID cards by August 15, 2021.

· Unclear employment protections

· Currently, there’s a legal challenge to the amendment before the Mississippi Supreme Court.

2) South Dakota Initiated Measure 26 (Ballot Initiative) – Medical marijuana

· Anticipated effective date: July 1, 2021.

· South Dakota DOH to enact rules and regulations 120 days after effective date (anticipated Fall 2021).

· ID cards issued 140 days after effective date (anticipated Fall to late 2021).

· Explicit employment protections – off-duty use of medical marijuana has strict protections with no safety-sensitive carveouts.

South Dakota Constitutional Amendment A – Recreational Marijuana

· Anticipated effective date: July 1, 2021.

· South Dakota Department of Revenue must promulgate rules and regulations by April 1, 2022.

· Explicitly no employment protection – does not affect the employer’s ability to restrict the use of marijuana by employees.

3) Arizona Proposition 207: the “Smart and Safe Arizona Act” (Ballot Initiative) – Recreational marijuana

· Effective after votes are counted/certified, and Governor issues a proclamation.

· Arizona Department of Health Services (DHS) must adopt rules to implement by June 1, 2021.

· Appears to have no explicit employment protections – does not limit the employer’s right to maintain a drug and alcohol-free workplace.

4) Montana Statutory Initiative No. 190: The “Montana Marijuana Regulation and Taxation Act” – Recreational marijuana

· Effective January 1, 2021.

· Montana Department of Revenue must promulgate rules and regulations by October 1, 2021.

· Unclear employment protections.

· Montana also has an off-duty use law that prohibits discrimination for the use of lawful products during nonworking hours.

5) New Jersey Public Question 1 (Constitutional Amendment) – Recreational marijuana

· Not effective until at least January 1, 2021.

· Legislature may take any action necessary to effectuate the provisions of the Constitutional Amendment.

· The Cannabis Regulatory Commission (CRC) is responsible for regulating the cultivation, processing, and sale of recreational marijuana.

· Does not address or reference employment protections; may be addressed by the legislature.

As of November 12, 2020, 35 states, including Washington D.C. and three U.S. territories, have passed comprehensive medical marijuana laws, while 15 states, including Washington D.C. and two U.S. territories, have passed recreational marijuana laws. Additionally, 13 other states have low THC/high CBD laws. Nebraska is the only state that has an industrial hemp law. DISA’s marijuana map is an interactive tool to help you find information on legalization, medical use, recreational use, and anything in between that’s updated on a monthly basis.

What Should Employers Do?

With no real way to detect impairment, employers must rely on safety-sensitive carveouts within the laws themselves. Some laws layout explicit employment protections, while others do not. Only a few jurisdictions have defined safety-sensitive carveouts, including New York City, Nevada, Arizona, Arkansas, New Mexico, Oklahoma, Pennsylvania, and West Virginia. If there are no explicit employment protections, employers must ensure a clearly defined and well-written drug testing policy to build a culture of safety in their workplace. Regardless of the laws, marijuana remains federally illegal, and employers have a right to protect their workplace, especially those with safety-sensitive positions. When building and implementing an effective company policy, employers need to consider the following:

· Drug testing/drug-free workplace laws

· State disability/discrimination laws

· ADA

· Unemployment benefits

· Medical marijuana laws

· FMLA

· Workers’ comp

· Lawful activities/”off-duty” laws

Employers should implement a clear and concise written policy as well as employee education and reasonable suspicion training. Safety-sensitive jobs should be clearly defined with a detailed job description, coupled with a Medical Disclosure policy requiring employees to notify you about a prescription that could cause impairment while on the job.

What Can DISA do?

As your industry-leading TPA, DISA’s professionals can help you navigate the complexities of the legalization of both medical and recreational marijuana laws that vary by state. Our experts will ensure you build a policy that is effective in keeping your workplace safe while abiding by all state laws. As the industry changes, DISA can help you stay up-to-date on the latest and greatest, ensuring your workplace remains in compliance.

Are you an employer and still have questions regarding employment screening?

DISA can help! Get answers directly from DISA’s subject matter experts with ‘Ask DISA’.

Visit www.askdisa.com to ask your questions today

About DISA Global Solutions

Founded in 1987, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists