State Laws Protecting Medical Marijuana Patients’ Employment Rights

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Laws in sixteen states: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine*, Massachusetts, Minnesota, Nevada*, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island and West Virginia prohibit employers from discriminating against workers on the basis of their status as a medical marijuana patient.

The laws in Arizona, Arkansas, Delaware, Minnesota, Oklahoma and Rhode Island specify that a positive drug test alone does not indicate impairment. New Jersey’s law allows an employee or job applicant  to present a medical explanation for a positive test result.

Maine’s law also protects recreational cannabis users. New York City and Nevada have passed laws banning denying a job applicant from work based on a positive drug test for marijuana, whether for medical or recreational use. (Those laws will go into effect in 2020.) Washington DC city council has approved employment protections for those using medical marijuana (the law must be approved by Congress) and the Mayor of DC has put out an order protecting all cannabis users’ employment rights in that city.  San Francisco has a law protecting against drug testing of employees

All states exempt employers who are required to follow federal drug-testing mandates.

ARIZONA

Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person’s status as a cardholder.

2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

ARKANSAS

An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient or Designated Caregiver.

CONNECTICUT

No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

DELAWARE

Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:

a. The person’s status as a cardholder; or

b. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

ILLINOIS

No school, employer, or landlord may refuse to enroll or lease to, or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would put the school, employer, or landlord in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules.

No school, landlord, or employer may be penalized or denied any benefit under State law for enrolling, leasing to, or employing a cardholder.

MAINE*

A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person’s status as a qualifying patient or a caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises.

*As of 2/1/18, Maine also protects the employment rights of recreational marijuana users via their initiative language, which states:

School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

Employment policies. This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.

MASSACHUSETTS

Mass. Gen. Laws Ann. Ch. 94I §§ 1 to 8; 105 Mass. Code Regs. 725.650; Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017); Mass. Gen. Laws Ann. ch. 94G, § 2

Medical marijuana: Employers are not required to accommodate on-site use of medical marijuana at the workplace. However, an employee who uses medical marijuana to treat a disability is entitled to reasonable accommodation under the state disability discrimination law. Under that law, employers with 6 or more employees must accommodate off-site, off-duty use, unless there is an equally effective alternative treatment available or it would cause the employer undue hardship.

Recreational marijuana: Employers are not required to accommodate recreational marijuana use in the workplace. Employers may enforce workplace policies restricting marijuana consumption by employees.

MINNESOTA

Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:
(1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or

(2) a patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.

An employee who is required to undergo employer drug testing pursuant to section 181.953 may present verification of enrollment in the patient registry as part of the employee’s explanation under section 181.953, subdivision 6.

NEVADA

NRS 453A.800 The provisions of this chapter do not:

Require any employer to allow the medical use of marijuana in the workplace.

Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:

(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or

(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.

Prohibit a law enforcement agency from adopting policies and procedures that preclude an employee from engaging in the medical use of marijuana.

As used in this section, “law enforcement agency” means:
(a) The Office of the Attorney General, the office of a district attorney within this State or the Nevada Gaming Control Board and any attorney, investigator, special investigator or employee who is acting in his or her professional or occupational capacity for such an office or the Nevada Gaming Control Board; or
(b) Any other law enforcement agency within this State and any peace officer or employee who is acting in his or her professional or occupational capacity for such an agency.

NEW JERSEY

It shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registry identification cardholder. “Adverse employment action” means refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.

If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant.

Within three working days after receiving notice pursuant to paragraph (1) of this subsection, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.  As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, a registry identification card, or both.

Nothing in this section shall be deemed to:

(1) restrict an employer’s ability to prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours; or

(2)   require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of a licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.

No employer shall be penalized or denied any benefit under State law solely on the basis of employing a person who is a registry identification cardholder.

NEW MEXICO

Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under the Lynn and Erin Compassionate Use Act.

Nothing in this section shall: (1) restrict an employer’s ability to prohibit or take adverse employment action against an employee for use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment; or (2) apply to an employee whose employer deems that the employee works in a safety-sensitive position.

NEW YORK

Being a certified patient shall be deemed to behaving a “disability” under article fifteen of the executive law (human rights law), section forty-c of the civil rights law, sections 240.00, 485.00, and 485.05 of the penal law, and section 200.50 of the criminal procedure law. This subdivision shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance. This subdivision shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.

OKLAHOMA

Unless otherwise required by federal law or required to obtain federal funding:

1. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant’s or employee’s status as a medical marijuana licensee; and
2. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless:
a. the applicant or employee is not in possession of a valid medical marijuana license,
b. the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or
c. the position is one involving safety-sensitive job duties, as such term is defined in subsection K of this section.
Nothing in this act or Section 420 et seq. of Title 63 of the Oklahoma Statutes shall:
1. Require an employer to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment;
2. Require an employer, a government medical assistance program, private health insurer, worker’s compensation carrier or self-insured employer providing worker’s compensation benefits to reimburse a person for costs associated with the use of medical marijuana; or
3. Prevent an employer from having written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, Section 551 et seq. of Title 40 of the Oklahoma Statutes.
Any applicant or employee aggrieved by a willful violation of this section shall have, as his or her exclusive remedy, the same remedies as provided for in the Oklahoma Standards for Workplace Drug and Alcohol Testing Act set forth in Section 563 of Title 40 of the Oklahoma Statutes.
As used in this section:
1. “Safety-sensitive” means any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:
a. the handling, packaging, processing, storage, disposal or transport of hazardous materials,
b. the operation of a motor vehicle, other vehicle, equipment, machinery or power tools,
c. repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage,
d. performing firefighting duties,
e. the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
f. the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component,
g. dispensing pharmaceuticals,
h. carrying a firearm, or
i. direct patient care or direct child care; and
2. A “positive test for marijuana components or metabolites” means a result that is at or above the cutoff concentration level established by the United States Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.
All smokable, vaporized, vapable and e-cigarette medical marijuana product inhaled through vaporization or smoked by a medical marijuana licensee are subject to the same restrictions for tobacco under Section 1-1521 of Title 63 of the Oklahoma Statutes, commonly referred to as the “Smoking in Public Places and Indoor Workplaces Act”.

PENNSYLVANIA

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

RHODE ISLAND

No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.

WEST VIRGINIA

W. Va. Code Ann. §§ 16A-5-10, 16A-15-4

§16A-15-4.  Protections for patients and caregivers.

(b) Employment. —

(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.

(2) Nothing in this act shall require an employer to make any accommodation of the use of medical cannabis on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical cannabis in the workplace or for working while under the influence of medical cannabis when the employee’s conduct falls below the standard of care normally accepted for that position.

(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.

§16A-5-10.  Prohibitions.

The following prohibitions shall apply:

(1)  A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than three nanograms of active tetrahydrocannabis per milliliter of blood in serum:

(A)  Chemicals which require a permit issued by the Federal Government or a state government or an agency of the Federal Government or a state government.

(B)  High-voltage electricity or any other public utility.

(C) Vehicle, aircraft, train, boat or heavy machinery.

(2)  A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical cannabis.

(3)  A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

(4)  A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

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