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Election 2016 ~ Marijuana Rolls To Dominating Electoral College Win

November 23, 2016

By Michael G. McClory

While the 2016 election has left some in a daze, the results could not be more clear.  A majority of voters in 8 states approved marijuana-legalization ballot measures.  Consequently, pot rolled to a dominating 329-209 Electoral College win.
To date, 28 states plus the District of Columbia have enacted some form of marijuana legalization (Electoral College value of 329).  Only 22 states have yet to enact a medical or recreational marijuana law.  The question is whether these results impact the workplace.  The Bullard Edge believes they do.  After looking at each of the eight ballot measures in the first half, in the second half of the article we offer five practical takeaways for employers dealing with marijuana in the workplace.

Medical Marijuana Approved In Four States
Voters in four states approved medical marijuana initiatives. 
Treasure State voters initially approved medical marijuana in 2004.  However, in 2011 the state legislature replaced that law.  Advocates found the replacement law to be “unworkable” because it presented “significant obstacles for patients, providers and growers, essentially eliminating medical marijuana as a viable, legal option for Montanans.” 
This month 57.6% of Montana voters approved Initiative No. 182, which expanded the existing law in part and repeals it in part.  As explained by Montana Citizens for I-182, the new measure allows “access to medical marijuana for those battling cancer or with other debilitating illnesses,” including PTSD.  Moreover, it repeals the limit of three patients for each licensed provider.
North Dakota:
Voters in the Peace Garden State emphatically passed Initiated Constitutional Measure No. 5, also known as the North Dakota Compassionate Care Act (63.7% in favor).  As stated on the ballot, the new law “provides for the medical use of marijuana for defined medical conditions, such as cancer, AIDS, hepatitis C, ALS, glaucoma, and epilepsy.”  In order to participate, a qualified patient must go through a certification process to be administered by the Department of Health.  The law does not shield any person from criminal prosecution for use or possession inconsistent with the Act.
Sunshine State voters, by a 71.2% majority, approved of Florida Amendment No. 2, better known as the Florida Medical Marijuana Legalization Initiative.  It will permit the medical use of marijuana by individuals who a state-licensed physician has found to have a specific debilitating disease or comparable debilitating condition (including but not limited to “cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post‐traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis, or other debilitating medical conditions”).  The law specifically states that it does not require employers to accommodate the medical use of marijuana.
Razorback State voters approved the Arkansas Medical Marijuana Amendment of 2016 by a modest 53% to 46.9% majority.  The new law will allow a patient diagnosed with a “qualifying medical condition” to purchase marijuana from a state-approved dispensary; patients may not grow their own.  “Qualifying medical conditions” include a number of specific conditions (e.g., cancer, glaucoma, HIV positive, and hepatitis C, among others), as well as any other “medical condition or its treatment approved by the Department of Health” under the Amendment.  While it does not require employers to accommodate the medical use of marijuana, it does make it unlawful for an employer to discriminate based on an individual’s “past or present status as a Qualifying Patient.”
Recreational Marijuana Approved In Four States
Sending the message that “marijuana is not just for treatment anymore,” voters in four other states approved recreational marijuana initiatives.  Each of these states already has a medical marijuana law in place.
In 1996 the Sunshine State enacted the Compassionate Use Act, a pioneering law in the medical marijuana arena.  Following California’s lead, a number of other states subsequently enacted medical marijuana laws.  Moreover, some of those states also enacted recreational use laws – not California, though, where voters in 2010 rejected a recreational use ballot initiative).
2016 saw a different result.  A majority of California voters (56%) approved of Proposition 64, which is officially known as the Control, Regulate and Tax Adult Use of Marijuana Act.  The official voter guide states that the law “Legalizes marijuana under state law, for use by adults 21 or older.”
Significantly, California’s new law is not intended to interfere with employer drug policies.  Among the expressly stated intents of the law is to “Allow public and private employers to enact and enforce workplace policies pertaining to marijuana.”  Further, the law states that it does not amend, restrict or preempt any “rights and obligations” of any public or private employer “to maintain a drug and alcohol free workplace” or to “comply[ ] with state or federal law.” 
The California law also addresses accommodation.  It states that it does not “require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees”.
Voters in the Silver State approved the Initiative to Regulate Marijuana Like Alcohol by a 54% to 46% margin.  As with the recreational use laws in other states, Nevada’s new law permits adults (21 or older) to purchase and possess marijuana for recreational use.  It does not limit any right that an employer has to adopt and implement a drug and alcohol policy.
Bay State voters approved (53.5% to 46.4%) Massachusetts Question 4, which will make it legal for persons age 21 or older to possess and use marijuana for recreational purposes.  According to the state’s 2016 Ballot Questions summary, the approved law will “permit employers to prohibit the consumption of marijuana by employees in the workplace.”
The Pine Tree State is recreationally smoke free no more.  By the slimmest of margins (50.1% to 49.8%) voters approved Referendum Question 1 and legalized recreational marijuana.  The referendum, in its entirety, asked: “Do you want to allow the possession and use of marijuana under state law by persons who are at least 21 years of age, and allow the cultivation, manufacture, distribution, testing, and sale of marijuana and marijuana products subject to state regulation, taxation and local ordinance?”
There is a significant caution in the Maine law, though.  It remains permissible under the law for an employer to adopt and implement a workplace drug policy that prohibits an employee from using or being under the influence of marijuana while in the workplace.  However, the law bars an employer from penalizing an employee for consuming marijuana outside of the workplace.  This is going to put a premium on the quality of the employer’s policy (see below).
Marijuana in the Workplace – Practical Takeaways
Employers in Oregon and Washington are not directly impacted by the 2016 marijuana ballot results.  However, we think that there are at least five practical considerations to bear in mind.
First, the laws generally do not require employers to accommodate or tolerate marijuana use or impairment in the workplace.  Some of the state marijuana laws expressly state that they do not require employers to accommodate the medical use of marijuana or tolerate the recreational use of marijuana.  For example, Oregon’s Measure 91, which passed in 2014 and legalized recreational marijuana in the state, specifically provides that it does not “amend or affect” existing state employment laws.  Other state marijuana laws seem to be less specific or silent.
Second, Maine’s law tests the general trend.  As noted above, Maine’s new law bars an employer from penalizing an employee for consuming marijuana outside of the workplace, but permits an employer to adopt a policy barring an employee from being under the influence of marijuana in the workplace.  This tees up a conflict between the bare language of the law and the limitations of current impairment-testing technology.  As things stand, there is not a way to test for marijuana impairment (like there is for alcohol); the unavailability of precise testing pushes employers to use “any detectable level” of marijuana in the system as the under the influence standard. 
The Maine law makes it easy to envision the following scenario.  Employer, following the reasonable suspicion provision in its drug policy, requires an employee to submit to a drug test and terminates the employee after the test is positive for marijuana.  Employee, on the other hand, counters that s/he used marijuana legally outside of the workplace and was not in fact impaired on the job.
Third, the number of positive marijuana tests ought to continue to rise.  As the Electoral College analysis suggests, marijuana for medical and/or recreational use is now legal under the laws in a majority of states.  (In the words of Merle Haggard and Willie Nelson, it’s all going to pot.)  While marijuana use certainly precedes legalization at the state level, the removal of the threat of state criminal prosecution for use consistent with state law undoubtedly has the effect of increasing the total number of marijuana users.  Many of those users are going to be in the job market and employers will encounter them as applicants and employees. 
Fourth, employers should review their drug policies to make certain the policies say what employers want them to say.  Where a policy is ambiguous, it should be clarified.  Consider, for example, whether the policy has a definition of “illegal” drugs; if the intended meaning is illegal under federal or state law (as opposed to both), make sure the policy says that.
Fifth, pay attention to the Trump Administration.  This is not a political statement.  Rather, it is a nod to the reality that the United States will have a new President in less than two months.  Some things are going to change.  Relevant to our discussion is the likely nomination of Senator Jeff Sessions to be Attorney General.  Senator Sessions has said, “Good people don’t smoke marijuana.”  Marijuana remains an illegal drug under federal law and it is within the realm of possibility that under his direction the Justice Department could decide to reverse current federal enforcement policy in states that have adopted marijuana-legalization measures.   
Wishing a happy and safe Thanksgiving to all.
The Bullard Edge