As a result of the 2018 mid-term elections, Michigan, Missouri, and Utah have all legalized some form of marijuana. It’s imperative that employers remain up-to-date on marijuana changes as they could impact their company drug testing policies and procedures. Every time a state changes a marijuana law, it increasingly becomes more difficult for employers to keep track of.
Below is a detailed outline of the new marijuana legalization proposals in Michigan, Missouri, and Utah to better assist employers in understanding the changes and knowing what is needed to maintain a safe workplace.
Michigan Proposal 1
Michigan Proposal 1 (Proposal 1), also known as the Marijuana Legalization Initiative or the Michigan Regulation and Taxation of Marihuana Act, was passed by 56.96% of voters and effectively legalizes recreational marijuana in the state. Although Proposal 1 does not have a timeline for legalization in its text, Michigan state law dictates that ballot initiatives go into effect a mere 10 days after election results are certified. As a result, it is likely that possession of marijuana, at a minimum, will be legalized by December 2018.
Proposal 1 did not include strict requirements on when recreational sales would begin in the state. Proposal 1 requires that the state Department of Licensing and Regulatory Affairs begin accepting applications for retail stores within 1 calendar year of the effective date of Proposal 1. The Department will establish testing, packaging, and labeling standards, including a maximum THC level for marijuana-infused products and testing requirements to ensure safety as part of the regulatory framework that will be set up before sales of recreational marijuana can begin.
Proposal 1 legalizes marijuana for adults ages 21 and older, provides for the legalization of hemp, and will provide an eventual commercial production and distribution system. Under Proposal 1, the operation, navigation, or physical control of motor vehicles, aircraft, snowmobile, off-road recreational vehicles, and motorboats while under the influence of marijuana or while consuming marijuana is strictly prohibited. Consumption and/or the growth of marijuana plants in a public place is not permitted.
Under Proposal 1, employers are not required to permit or accommodate marijuana use or being under the influence of marijuana in the workplace or on the employer’s property. Employers retain all rights to discipline employees for violating a drug-free workplace policy and/or working while under the influence of marijuana. It is important to remember that there is currently no universally accepted definition of marijuana impairment and no drug testing method that can detect marijuana impairment. Employers may take adverse employment action against an employee and/or applicant based on a violation of a workplace drug and alcohol policy.
Missouri Amendment 2
Missouri had three medical marijuana-related initiatives on the ballot this year, however, only one passed. Missouri Amendment 2 (Amendment 2), also known as the Medical Marijuana and Veteran Healthcare Services Initiative, passed with 65.29% of the votes. Under Amendment 2, the state Department of Health and Senior Service (the Department) is required to begin accepting patient applications by June 4, 2019, and dispensary and/or cultivation applications no later than August 3, 2019. There is no timeline outlined for when medical marijuana sales will begin in Missouri.
Amendment 2 provides that a state-licensed physician makes a recommendation for medical marijuana. There are 9 qualifying conditions in the state of Missouri; cancer, epilepsy, glaucoma, intractable migraines, a chronic medical condition (such as multiple sclerosis, seizures, Parkinson’s disease, and Tourette’s syndrome), debilitating psychiatric disorders such as PTSD, human immunodeficiency virus or acquired immune deficiency syndrome, a chronic medical condition that could lead to a physical or psychological dependence on prescription medications, and/or any terminal illness. Additionally, any other chronic, debilitating, or other medical condition can be deemed a qualifying condition through the professional judgement of a licensed physician. Patients are allowed to ingest, vape, smoke, use ointment/balms, edibles, transdermal patches and suppositories, and/or use any other method of administration that is recommended by their physician. Consumption in public spaces is strictly prohibited.
Included in Amendment 2 are provisions for the regulatory framework of medical sales as well as the testing of marijuana specimens to ensure a safe product. However, no timeline is included for when medical marijuana sales will begin. Home grow of up to 6 flowering marijuana plants is permitted for qualified patients and/or qualified primary caregivers. Currently there is no limit on the amount of marijuana that can be purchased within a 30-day period, nor the amount of marijuana that each patient may possess. However, the Department may establish limits if they see fit.
Amendment 2 includes language that provides that there is no immunity provided for negligence caused by the operation of, navigation of, or physical control of a vehicle, aircraft, dangerous device, or navigation of a boat while under the influence of marijuana. Additionally, language is included that prohibits a medical marijuana user from undertaking any task while under the influence that would constitute negligence or professional malpractice. Medical marijuana using employees are prohibited from bringing any claims against employers, former employers, or prospective employers for a wrongful discharge, discrimination, or any similar cause of action based on the individual being under the influence of marijuana while at work or for attempting to work while under the influence of marijuana.
Utah Proposition 2
Utah Proposition 2 (Proposition 2), also known as the Utah Medical Cannabis Act, passed on November 6th with a 53.15% majority. Although Proposition 2 passed by a majority, the legislature is expected to call a special section to adjust the wording of Proposition 2 in order to reflect a legislative compromise reached in early October. At this time, it is not known when medical sales will begin in Utah.
Proposition 2 includes in-depth instructions as to licensing, operational, and registration processes for facilities wishing to sell and/or grow medical marijuana in the state. As it stands, until 2022 the state will only issue 15 licenses for cannabis cultivation facilities. As of January 1, 2022, the state may perform an analysis of current and anticipated market needs and determine if more licenses are needed. No marijuana may be sold if a representative sample of the product has not undergone testing at a licensed laboratory.
Proposition 2 outlines 11 qualifying conditions for a medical marijuana license. Qualifying conditions include HIV/acquired immune deficiency syndrome/an autoimmune disorder, Alzheimer’s, amyotrophic lateral sclerosis, cancer/cachexia/a condition manifest by physical wasting/nausea/malnutrition associated with a chronic disease, Crohn’s disease/ulcerative colitis/a similar gastrointestinal disorder, epilepsy or a similar condition that causes debilitating seizures, multiple sclerosis or a similar condition that causes persistent and debilitating muscle spasms, post-traumatic stress disorder, autism, a rare condition or disease affecting less than 200,000 persons in the U.S., and chronic or debilitating pain (if an individual is at risk of becoming dependent on opioids or is allergic or otherwise unable to use opiates). Additionally, conditions can be approved on an individual case-by-case basis. Utah residents who wish to become qualifying medical marijuana patients must receive a recommendation from a licensed physician.
The consumption of medical marijuana is not permitted in public unless there is a medical emergency. The smoking of medical marijuana is strictly prohibited. Proposition 2 provides discrimination protections for medical marijuana users from landlords but does not mention employers.
A draft of the compromise legislation is available for public view. Under the proposed compromise legislation, employers may not refuse to hire, suspend, terminate, take adverse action against, or otherwise penalize an individual solely for their status as a medical marijuana cardholder unless failing to do so would cause the employer to lose a monetary or licensing- related benefit under federal law. Employers are exempt from paying for or reimbursing the cost of marijuana, a marijuana product, or a medical marijuana device. This language may change when the special legislative session meets to discuss the future of medical marijuana in Utah.
North Dakota Measure 3
North Dakota Measure 3 failed by a 59.46% majority. It would have decriminalized all marijuana possession for adults over 21, placed no limits on possession, and put in place penalties for those under 21 who distribute or possess marijuana. Medical marijuana remains legal in the state, and it is likely that marijuana legalization advocates will continue to push for recreational legalization in the future.
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