Dissension Aside, Americans Appear United on Marijuana

With all the controversy and divisiveness surrounding the 2020 election, Americans appeared united on one subject—legalizing marijuana. In fact, it was one area that was seemingly powerful enough to garner bipartisan support, not an easy feat this (or any) year. According to a Gallup Poll released on November 9th, 2020, 68% of Americans favor legalizing marijuana, doubling the approval rating from 2003. This result is likely due to a combination of lengthy campaigns by medical marijuana supporters and the devastated state economies due to the pandemic. However, while there may be some consensus on broad legalization, there is anything but harmony with regard to testing, accommodations, and CBD use.

Overall, the elections resulted in two additional states approving medical marijuana, Mississippi and South Dakota, with recreational marijuana winning big in New Jersey, Arizona, Montana, and South Dakota. South Dakota even made history in 2020 by becoming the first state to pass both medical and recreational marijuana legislation at the same time.

2020 State Marijuana Legislation

Medical

Mississippi – Initiative 65 was approved by an overwhelming majority of Mississippians. Under the Initiative, physicians can prescribe marijuana to patients with certain debilitating medical conditions where he or she believes the benefits of using medical marijuana would “reasonably outweigh potential health risks.” The process includes the physician issuing a certificate to the patient, allowing the patient to obtain a medical marijuana identification card, and then allowing him or her to use marijuana for the time prescribed. Patients may purchase and carry up to 2.5 ounces of marijuana at any given time. Medical marijuana is anticipated to be available in Mississippi by the summer of 2021.

Section 3 of the Initiative briefly discusses employment scenarios, stating that a patient cannot require “accommodation for the use of medical marijuana or require any onsite use of medical marijuana in any public or private correctional institution, detention facility, or place of education or employment.”

Recreational

New Jersey – Public Question 1, a constitutional amendment, was approved for the possession and use of up to 6 ounces of marijuana for adults age 21 and older in New Jersey. It also includes the cultivation, processing, and sale of marijuana. There is currently no language pertaining to the workplace or employers contained in the amendment. However, it is still early, and language could be added in forthcoming regulations.

New Jersey legalized medical use of marijuana in 2010, and is now the first state in the mid-Atlantic region to approve its recreational use. Many anticipate that neighboring states will be soon to follow.

Arizona – Proposition 207, known as the Smart and Safe Arizona Act, allows adults age 21 and over to travel with up to 1 ounce of marijuana and grow up to 6 marijuana plants at home. Proposition 207 will become effective once the election is certified, which should be no later than November 30th. However, Arizona shops cannot apply for licenses until January of 2021, after the Arizona Department of Health formulates regulations.

Proposition 207 includes language specifically protecting the workplace. Section 2-2(c) states, “Employers retain their rights to maintain drug- and alcohol-free places of employment.”

Montana – Marijuana Legalization and Tax Initiative I-190 approves recreational marijuana possession and use by adults age 21 and over. According to the Initiative, adults can possess, purchase, use, ingest, inhale, or transport up to 1 ounce of marijuana. Adults may also plant or cultivate up to four mature marijuana plants and four seedlings.

Montana included employer protections in the Initiative. Specifically, “Employers are not prohibited from disciplining employees if they violate their workplace drug and alcohol policy or if they work while intoxicated by marijuana.” Medical use has been legal in Montana since 2004.

Both Medical and Recreational

South Dakota – According to Matthew Schweich, deputy director of the Marijuana Policy Project, “South Dakota has made history by becoming the first state to legalize medical marijuana and legalize marijuana for adults on the same day.”

Under Initiative Measure 26, patients suffering from debilitating conditions will be permitted to purchase and possess up to 3 ounces of marijuana from a licensed dispensary. Patient registration cards are expected to be issued by November 18, 2021.

The Initiative states that a qualifying patient must be treated the same as any other person who is prescribed a pharmaceutical medication in any interaction with the person’s employer. The Initiative also notes, “Nothing in this Act prohibits an employer from disciplining an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.”

Under Constitutional Amendment A, recreational marijuana was also approved in South Dakota. Adults 21 and older will be permitted to possess and distribute up to 1 ounce of marijuana. Additionally, they will be allowed to cultivate up to 3 cannabis plants.

Constitutional Amendment A also addresses employer concerns in that it does not require that an employer permit or accommodate marijuana usage or affect an employer’s ability to restrict his or her employees’ use of marijuana.

Both measures are set to become effective on July 1, 2021.

Where We Stand Today

Post-election, there are 35 states that have now approved marijuana for medicinal use and 15 states that have approved marijuana’s use recreationally. Washington DC permits both. Within the past year, there has also been the implementation of Nevada and New York City’s bans on pre-employment testing for marijuana. With the significant budget shortfalls following the pandemic’s devastating impact and the enormous amount of money involved in the marijuana industry, more states across the country are expected to consider marijuana legislation in 2021.

Marijuana, of course, remains a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. However, there is a chance that could change sooner rather than later. In December of 2020, the House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (“MORE Act”), which would remove marijuana from the list of scheduled substances and clear the way to erase nonviolent federal marijuana convictions. It is yet to be seen what the Senate will do about the MORE Act, but there could be more pressure to make a change. Supporters, including the powerful marijuana industry and struggling state governments argue that the marijuana industry creates much-needed jobs and generates much-needed revenue in an economy that desperately needs both. Whenever billions of dollars are involved as it is here, it means big business and more power. How that power will affect the federal government’s stance on marijuana is yet to be seen.

It is early in the process for the five states that approved marijuana this year. Many still have to go through numerous legislative steps until there is an effective law. Also, despite the overwhelming support in most states, there is still strong opposition, which could lead to legal challenges. Finally, the involved states’ various departments of health must determine appropriate regulations and guidance before any laws go into effect.

Hire Image understands drug screening in the workplace and employers’ rights as they pertain to drug free workplace policies and drug testing, while remaining compliant with state laws. The uncertainty surrounding marijuana’s status as legal or not, CBD use, and an employer’s obligation to provide accommodations almost guarantees additional legislation and caselaw in 2021 to determine the parameters of the future of drug screening. As always, we strive to be your trusted source for background checks and drug screening. Contact us today to get your questions answered. For more information on Medical or Recreational Marijuana, and whether they affect your state, visit our resource guide at the Hire Image Resource Library.