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Thursday, February 2, 2023

Legalization of recreational marijuana and therapeutic drugs

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Three more states have legalized adult recreational marijuana use in 2022, and it may only be a matter of time before such use becomes legal across the country.

Acceptance is also increasing with the use of therapeutic narcotic medications, such as psilocybin. Two states have legalized its use, some cities have decriminalized its use and more states may adopt laws legalizing it in the future.

But while the use of these drugs may be legal, employers still don’t have to allow employees under their influence to work.

Here’s how these laws can make a difference in the workplace.

Implications for the legalization of recreational marijuana

Although in 2022 three states – Arkansas, North Dakota and South Dakota – refused to legalize recreational marijuana use for adults, three more states – Maryland, Missouri and Rhode Island – have legalized such use.

“I think marijuana legalization is inevitable nationwide; it’s just a matter of how and when,” said Dillon McGuire, attorney for Bachmann Stein Walder Heiden in Holmdel, NJ.

Recreational marijuana is now legal in 21 states plus the District of Columbia.

August Hickman III, attorney for Morgan Lewis in Princeton, NJ, said the implications of the employment law are twofold—legal and practical.

He noted that some laws prohibit employers from taking adverse labor actions based on an individual’s legal off-duty use of recreational marijuana, unless the employee came to work damaged. Thus, employers who have pre-employment drug testing programs or that test for THC — the psychoactive component in cannabis — may be at risk because they are not testing for impairment but to see if an employee has THC in their system, Hickman explained. “As a result, basing a non-employment or termination decision on the results of pre-employment testing or random testing can result in a claim for employment,” he said.

Cannabis can be detected in blood and urine for up to a month after use and is detected in hair for much longer periods, said Ruth Rawls, an attorney with Saul Ewing in Princeton, New Jersey and New York. She added, “Thus, if an individual regularly uses cannabis outside of work, they are always more likely to test positive for the drug.” “If an employee tests positive for cannabis, there is no definitive way to know if the positive result was caused by cannabis use during the previous hour, day, or month or if the employee was vulnerable at the time of the test.”

She warned that employers who rely on drug tests for adverse hiring procedures may run afoul of state laws that protect some off-duty cannabis use.

For this reason, employers should update and implement vulnerability assessment forms that document why an employee is suspected of having a disability, through behavior, appearance, and performance, Hickman said.

Christopher Duke, an Ackerman attorney in West Palm Beach, Fla., and Boca Raton, Fla., said employers with employees in different states will need to know the law in every state where their employees are located. Companies should reconsider their zero-tolerance policies and that more employees test positive in a situation where cannabis becomes legal, he added.

However, employers should remember that although their state may allow recreational or medical cannabis use, state laws do not affect or change the fact that cannabis remains illegal at the federal level as a Schedule I drug under the Controlled Substances Act, Notice Duke. “This is critical for employers who contract with the federal government or receive federal grants, as the federal government continues to prohibit cannabis use among its contractors,” he said.

Duke said employers in all states should keep an eye on federal legislation that would decriminalize cannabis use nationwide, adding that this would be a “major game-changer for employers.” President Joe Biden already has it All persons convicted of simple possession of marijuana have been pardoned under federal law.

“He encouraged governors to follow suit,” noted James Reedy, Sheehan Feeney’s attorney in Manchester, New Hampshire.

State law may restrict certain categories of employees from recreational marijuana use — for example, employees who operate heavy equipment or have other safety-sensitive roles, such as police officers, firefighters, or other first responders, said George Voegeli Jr., an attorney at Cozen. O’Connor in Philadelphia.

Therapeutic narcotics

In the United States, some drug use in a facilitated, supervised setting is legal in Colorado and Oregon, noted Lorraine Carbone, an attorney at Foley & Lardner in Denver, and John Litchfield, an attorney at Foley & Lardner in Chicago.

In November 2020, Oregon became the first state to regulate psilocybin therapy sessions for adults 21 and older in licensed clinical settings.

Psilocybin is a psychoactive compound found in what are referred to as magic mushrooms, explains Christine Lamb, an attorney with Fortis Law Partners in Denver.

The state begins accepting applications for a facility license to administer a regulated psilocybin services program on January 2, 2023.

In November 2022, Colorado voters approved a similar measure. By September 30, 2024, the Colorado Department of Regulatory Agencies must adopt enforcement rules.

Those laws could lead to heightened concerns by employers about employees working under the influence of narcotic drugs, said Zachary Kobrin, an Ackerman attorney in Fort Lauderdale, Florida.

a growing number of cities – including Ann Arbor, MI; Denver. Detroit. Oakland, California; San Francisco; Seattle. And Washington, D.C., has decriminalized the personal use of certain types of insects, known as narcotic plants, and fungi by adults. Carbone and Litchfield added, “However, decriminalization does not necessarily mean legalization.” “Instead, simple possession of some constituent items for personal use will have the lowest enforcement priorities.”

Lamb noted that employers in Colorado and Oregon will have to decide whether to continue drug-testing workers and fire someone who uses them under medical supervision for a mental health disorder. In her view, employers can legally work but may choose not to because of an acute shortage of workers.

“It would be amazing if we didn’t have a rapidly growing group of states with some form of legal drug market in the next five years,” said Brett Gelburd, an attorney with Dekema in Detroit.

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