Get Out the Toke: State Ballot Initiatives Legalize Marijuana and More

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Take a deep breath. Now exhale. While the country awaits the results of the presidential race and many others that are still too close to call, the 2020 election made one thing clear: the march toward 50-state legalization of marijuana (and now perhaps other drugs) continues. On Tuesday, voters in five states decided to legalize recreational or medical marijuana, while Oregon voted to decriminalize most hard drugs, including heroin and cocaine. We summarize each ballot initiative and its outcome below.

Arizona

Ballot Summary: Although a similar initiative was narrowly defeated at the polls in 2016, voters in the Grand Canyon State approved Proposition 207: The Smart and Safe Arizona Act, which legalizes the sale and possession of up to one ounce of marijuana and five grams of THC concentrate by adults age 21 and over. Arizona has already legalized the use of medicinal marijuana. Proposition 207 also allows individuals convicted of certain marijuana-related crimes to apply to have their criminal records expunged. Although the measure becomes effective as soon as the votes are certified and the governor issues a proclamation, it will likely take several months for the Department of Health Services to license the dispensaries where residents will be able to purchase marijuana products.

Employment Implications: Nothing in the measure restricts an employer’s right to maintain a drug-free workplace or otherwise prevent employers from restricting marijuana use by their employees or applicants. The measure also does not require employers to permit or accommodate the use or consumption of marijuana “in a place of employment.”

Montana

Ballot Summary: Montana voters approved two ballot initiatives related to legalizing recreational marijuana. Initiative No. 190 (“I-190”) legalizes the use and possession of up to one ounce of marijuana by all persons who are at least 21 years old, effective January 1, 2021. Under this initiative, anyone serving a prison sentence for a marijuana-related offense that is decriminalized by the law may request re-sentencing or expungement. Voters also approved Constitutional Initiative No. 118 (CI-118), which allows the legislature or the people via ballot initiative to establish the legal age for marijuana use. Effectively, this constitutional amendment, coupled with the passage of I-190, limits recreational marijuana use to adults age 21. The Montana Department of Revenue will issue further rules and regulations by October 1, 2021.

Employment Implications: As with most of the other measures discussed in this article, I-190 does not require employers to permit or accommodate the use of medical marijuana “in any workplace or on the employer’s property.” The law will not prevent employers from disciplining employees or declining to hire an applicant who violates the employer’s drug policies or works while stoned.

New Jersey

Ballot Summary: Recreational marijuana was also on the ballot in New Jersey, where voters chose to legalize possession and use by adults age 21 and older. Public Question 1 amends the state constitution to legalize marijuana and authorizes the state’s existing Cannabis Regulatory Commission to oversee the new adult marijuana market, but leaves it up to the state legislature and local governments to provide further rules and regulations. The Constitutional amendment is effective January 1, 2021.

Employment Implications: Public Question 1 is silent with regard to its effect on private employers. Any direct employment implications will arise from the subsequent legislation or regulations. In the meantime, as we previously reported, New Jersey employers may still need to provide reasonable accommodations for medical marijuana users.

South Dakota

 Ballot Summary: In South Dakota, voters passed two ballot initiatives related to marijuana. Initiated Measure 26 creates a medical marijuana program for patients with debilitating medical conditions, while Constitutional Amendment A permits the use and possession of up to one ounce of marijuana (or eight grams of THC concentrate) by those age 21 and older. The medical marijuana program will begin on July 1, 2021. Adults age 21 and over will also be permitted to possess and use marijuana starting July 1, 2021, although the state has until April 1, 2022 to develop rules and regulations regarding the sale of recreational marijuana.

Employment Implications: Initiative Measure 26 requires employers to treat medical marijuana patients the same as any other employee prescribed a pharmaceutical medication (including drug testing), but it does not require employers to permit marijuana use “in any workplace” or working under the influence of marijuana. However, the measure explicitly provides that a medical marijuana patient is not considered under the influence “solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.” Constitutional Amendment A does not require employers to permit or accommodate recreational marijuana use, nor does it affect an employer’s ability to prohibit marijuana use by its employees.

Mississippi

Ballot Summary: Mississippi voters approved Initiative 65, which amends the state constitution to allow physicians to issue medical marijuana certifications to certain patients with debilitating medical conditions. The program permits patients to possess up to 2.5 ounces of marijuana, which they can obtain from a medical marijuana treatment center. Mississippi has until July 1, 2021 to establish rules and regulations implementing the medical marijuana program.

Employment Implications: The measure does not require employers to accommodate medical marijuana users or require any on-site use of medical marijuana.

Oregon

 Ballot Summary: With the passage of Measure 110, Oregon became the first state to decriminalize the personal, non-commercial possession of small amounts of Schedule I-IV controlled substances, including heroin, cocaine, and methamphetamines. The measure will take effect February 1, 2021.

Employment Implications: Measure 110 is silent with respect to employment and therefore does not impose any additional obligations on employers.

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Employers and health care professionals should prepare to handle issues that arise with the potential conflict between state and federal law in devising compliance, both in terms of reporting and human resources issues. As states and localities increasingly permit medicinal and recreational marijuana, employers – and particularly those with multi-state operations – must review and evaluate their current policies with respect to marijuana use by employees and patients.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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