In the November 2022 elections, Maryland and Missouri voted to legalize recreational cannabis. Arkansas, North Dakota, and South Dakota voted to reject recreational cannabis legalization. Employers in Missouri should carefully review the ballot initiative to ensure they are compliant with changes by December 8, 2022.
Arkansas Recreational Cannabis
Arkansas Issue 4, which would have legalized adult-use cannabis statewide, failed on Tuesday. Issue 4 was the only measure on the ballot that was added by the people of Arkansas rather than the state legislature. Nearly 44% of votes counted were in support of the Issue, while 56% were against it.
Maryland Recreational Cannabis
Maryland Question 4 passed on Tuesday, permitting recreational cannabis in the state. Approximately 65% of voters were in support of the Question, while nearly 35% were opposed. The Question adds a new article to the state constitution that permits individuals ages 21 and older to possess and use cannabis. The legislature will “provide for the use, distribution, possession, regulation, and taxation” of cannabis. Starting July 2023 Marylanders will be able to possess up to 1.5 ounces of cannabis.
The addition to the state constitution, in its entirety, is as follows:
“Article XX – Cannabis 1. (A) Subject to Subsection (B) of this section, on or after July 1, 2023, an individual in the state who is at least 21 years old may use and possess cannabis. (B) The General Assembly shall, by law, provide for the use, distribution, possession, regulation, and taxation of cannabis within the state.”
Neither the Question nor the constitutional addition mention employers or the workplace. Earlier in 2022, the legislature passed a companion bill (HB 0837) that provided initial guidance in case the Question passed; however, it too provides no guidance for employers.* It is likely that prior to July 2023 the legislature will provide further guidance that may apply to employers.
Missouri Recreational Cannabis
Missouri Amendment 3 passed Tuesday, permitting recreational cannabis in the state.** 53% of Missourians were in favor of Amendment 3 and 47% were against. The Amendment legalizes the purchase, possession, consumption, use, delivery, manufacture, and sale of cannabis for individuals age 21 and older. Additionally, non-violent marijuana-related convicts can petition to be released from incarceration and/or have their records expunged. Tax on the sale of cannabis is set at 6%. Smoking cannabis in public can lead to a fine and municipalities can bar recreational cannabis through a public vote.
The Amendment makes a number of changes for employers pertaining to medical cannabis. Unless a failure to do so would cause an employer to lose a monetary or licensing-related federal benefit, employers may not discriminate in terms of hiring, termination, or any condition of employment if the discrimination is based upon:
• An individual’s status as a medical cannabis patient or primary caregiver. This includes the patient’s legal use of medical cannabis off of the employer’s premises during nonworking hours unless the patient was under the influence of medical cannabis on work premises or during work hours.
• A positive drug test for cannabis or cannabis metabolites if the individual is a valid qualifying medical cannabis patient unless the individual used, possessed, or was under the influence of medical cannabis on work premises or during work hours.
This does not apply if an employee is in a position in which legal use of a lawful cannabis product impacts in any manner their ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to their employment.
Pertaining to recreational cannabis, the Amendment makes additional changes. Although adultuse cannabis is now legal, employers are not required to permit or accommodate conduct that is permitted at the workplace or on work property. Employers can discipline employees for working while under the influence of cannabis. Employers can refuse to hire, discharge, discipline, or take other adverse employment action against individuals in terms of hiring, tenure, terms, conditions, or privileges of employment because said individual was working while under the influence of cannabis.
The Amendment strictly prohibits driving/operating a motor vehicle while under the influence of cannabis, which may impact some workplaces. Additionally, the Amendment prohibits the use of cannabis at the workplace and undertaking any task while under the influence if doing so would constitute negligence, recklessness, or professional malpractice. The Amendment stipulates that it will become effective thirty days after the election, meaning December 8th, 2022. It is likely that the earliest cannabis will be available for sale in the state is February 2023.
North Dakota Recreational Cannabis
North Dakota Statutory Measure 2, which would have legalized up to one ounce of cannabis for adults 21 years and older, failed on Tuesday. Nearly 55% of North Dakota voters were against the measure, whereas 45% were in favor.
South Dakota Recreational Cannabis
South Dakota Initiated Measure 27, which would have legalized the possession, distribution, and use of marijuana by those adults 21 years and older was defeated on Tuesday. Nearly 53% of South Dakotans voted against the Measure while 47% were for. It is important to note that South Dakota voters have already legalized recreational cannabis use once in 2020; however, the measure was overturned as unconstitutional by the state Supreme Court in early 2022.
Next Steps for Employers
Employers should carefully review both the Maryland and Missouri laws to ensure they are compliant. Additionally, Maryland employers should keep a careful eye on the next legislative session to see if further guidance is provided pertaining to the workplace. Employers in both states should review their policies and make appropriate updates.
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