By Katherine Miller

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Although much of 2021 was spent taking continued pandemic precautions, legislators were still busy passing bills that impact employers nationwide. This article will feature an overview of pertinent bills passed in 2021 and what employers should keep their eyes on going in to 2022.

Cannabis Decriminalization or Expungement

Via HB 1090, Colorado eliminated the criminal offense of possession of two ounces of cannabis or less. The bill included provisions for sealing and expunging certain cannabis criminal convictions.

Rhode Island, with H 6083, reclassified simple possession of 10g or less of a controlled substance as a two-year misdemeanor rather than a felony.

CBD Oil Programs

Mississippi passed HB 119, which allows for the dispensing of, possession of, and use of CBD oil (cannabidiol) for debilitating epileptic conditions or related illnesses.

Medical Cannabis

Alabama legalized medical cannabis via SB 46. Under the new law, employers are not required to permit or accommodate the use of medical cannabis or modify the working conditions of any job for a medical cannabis using employee. Employers can prohibit medical cannabis use and can deny workers’ compensation benefits based on cannabis positive test results.

Colorado passed HB 1317, which amended their existing medical cannabis program. The bill authorizes scientific research relating to the physical and mental health effects of high-potency THC cannabis and cannabis concentrates. Additionally, it requires an assessment of the mental health history of medical cannabis patients.

The District of Columbia passed B24-0184, which prohibited public employers from refusing to hire, terminating, penalizing, failing to promote, or taking adverse employment action against an individual based on their status as a qualifying medical cannabis patient. Generally, a patient’s failure to pass a drug test due to cannabis cannot be used as the basis for employment-related decisions unless reasonable suspicion exists that the qualifying patient was impaired at their place of employment or during work hours.

Montana passed HB 655, which amended their existing medical cannabis law by deleting a provision that specifically permits employers to restrict medical cannabis use by employees, in addition to deleting a provision that prohibits a cause of action against employers for medical cannabis discrimination.

New Hampshire amended their existing medical cannabis program via HB 89 and HB 605, adding more qualifying conditions.

Tennessee passed SB 0118, which created the Medical Cannabis Commission. The Medical Cannabis Commission studies laws and legislation pertaining to the use of medical cannabis and is tasked with proposing legislation on how to “best establish an effective, patient-focused medical cannabis program.”

Recreational Cannabis

Connecticut legalized adult use cannabis in June via SB 1201. Employers can prohibit the use of cannabis during work hours and can discipline employees for being under the influence of cannabis during work hours. Employers cannot take adverse action against employees because they use cannabis outside of the workplace unless such action is made pursuant to company policy.

Employers can take adverse employment action upon determining that an employee manifests specific, articulable symptoms of drug impairment while working or at the workplace. Employers are not limited in their ability to subject employees or applicants to drug testing, fitness-for-duty evaluations, or taking adverse action pursuant to an established policy.

Effective July 2022, applicant drug tests that yield positive results for 11-nor-9-carboxy-delta-tetrahydrocannbinaol cannot form the sole basis for an employer’s refusal to employ, to continue to employ, or penalization of an individual in most instances.

New Jersey legalized recreational cannabis via AB 21, which provided no guidance for employers.

New Mexico legalized recreational cannabis in March via HB 2. Employers are not restricted in their ability to prohibit or take adverse employment action against an employee for impairment by, possession of, or use of intoxicating substances during work hours or at work. Employers can adopt and implement written zero-tolerance policies regarding the use of cannabis and cannabis products.

New York legalized recreational cannabis in March via S 00854, and the Department of Labor (DOL) provided clarifying guidance for employers in October. Pertaining to drug testing policies, the DOL states:

• If an employer has an existing drug-free workplace policy that prohibits marijuana use, the policy is no longer permitted (unless an exception applies), and the employer must update or amend their policy immediately.
• Employers cannot test for marijuana simply because it is allowed and not prohibited under federal law.
• This guidance only applies to workers employed within the state of New York, but covers both public and private employers in the state.

Hence, with few exceptions, New York employers cannot drug test applicants or employees for marijuana. Exceptions include:

• If federal or state law requires drug testing for marijuana or makes it a mandatory requirement of a particular position. The DOL cites the following as examples:

• • Mandatory drug testing for drivers of commercial motor vehicles [and applicants for such a position] in accordance with 49 CFR Part 382 [or any other federal government-mandated drug testing],
  • NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382

• When an employee’s actions [presumably while impaired on the job] would cause the employer to be in violation of federal law or the loss of a federal contract or federal funding.

Employers in the state can enact or enforce policies pertaining to cannabis in the workplace. Employers can prohibit the use of cannabis at the workplace or during work hours but cannot prohibit employees on leave from using cannabis or prohibit employees from using cannabis while off-duty and not at the worksite.

For an employer to act based on impairment at work, the employee must manifest specific articulable symptoms of impairment that decrease or lessen job performance or interfere with the employer’s obligation to provide a safe and healthy workplace. Generally speaking, an employer cannot use a drug test as the basis for their determination that an employee was/is impaired by cannabis. Policies that strictly prohibit cannabis use are prohibited.

Miscellaneous

Arizona passed HB 2159 requiring drug and alcohol testing for school bus drivers.

Iowa passed HF 283 which creates the criminal offense of defrauding a drug or alcohol test.

Louisiana passed two bills, HB 221 and HB 637, that require applicants for the transfer, issuance, renewal, or upgrade of a commercial driver’s license to be checked in the Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse.

New Hampshire, via SB 34, prohibited the manufacture, sale, distribution, marketing, or possession of synthetic urine or urine additives. Additionally prohibited are attempts to defeat a drug or alcohol test by using synthetic urine or urine additives.

New Jersey passed SB 3256, which reclassifies psilocybin possession as a disorderly persons offense.

Looking forward to 2022

It’s hard to believe that 2022 is nearly upon us; however, changes to the industry continue moving forward at breakneck pace. As with other recent years, it is likely that recreational and medicinal cannabis will lead the way in terms of bills passed in the new year. However, we will likely still see some other bills, such as expanded safety-sensitive testing, slight adjustments to state drug and alcohol testing programs, and more. Hopefully we will also see the release of the highly anticipated Department of Transportation (DOT) mandatory oral fluid guidelines.

Employers should continue to monitor laws closely – a change in law in a state where you operate likely necessitates a full review of your drug-free workplace policy. Contact policy@currentconsultinggroup.com to learn more about CCG’s policy services, or visit CurrentCompliance.org to learn more about Current Compliance, the industry’s only up-to-date state law database.

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