8 www.uslaw.org USLAW

The Legalization of and its Impact on the Workplace

By Michael D. Wong SmithAmundsen

The legalization of cannabis is not a was legalized in the 2018 Farm MUST understand the “new” cannabis drug. fad that will be going quietly into the night Bill and is defined as the marijuana/canna- The cannabis being sold at dispensaries cur- anytime soon. If anything the fact that the bis plant with less than 0.3% concentration rently is much different than the street drug legal sales of cannabis in during of delta-9 (THC). of the ‘70s and even ‘90s and much like with the first twelve (12) days reached $20 mil- This means that now employers are strug- texting comes with what may seem at times to lion and that the legal cannabis industry in gling with understanding not only the le- be a different language. The cannabis plant 2018 was a $10.4 billion industry, demon- gality of cannabis, but also hemp and legal itself that used to be referred to as “bud” or strates that it is here to stay. Currently there products such as CBD oils, balms, flower and “weed” is now called “flower.” In addition to are 11 states that legally allow the sale of derivatives, which are now technically legal “flower” with the prevalence of research and recreational cannabis, including Illinois, under both state and federal law. money, many different products have been California, Colorado, Alaska, Maine, What does all of this mean for employ- derived from “flower” that can be used by Massachusetts, Michigan, Nevada, Oregon, ers though? Does it mean the death knell of an individual, including edibles (hard candy, Vermont and Washington, and 33 states drug testing? Quite simply, no, employers baked goods, sodas, teas, tinctures). Another that have approved medical marijuana pro- will still be able to have drug testing policies derivative is concentrates that can be used grams. In Washington D.C., possession of and drug test employees. However, it has with vape pens and are called “shatter,” “wax,” up to two ounces of recreational cannabis brought into focus (and scrutiny) drug test- “oil,” “butter,” and “sugar.” The terms used to is legal (but sales remain illegal). ing policies and practices, as well as disability describe cannabis are not the only difference. What makes these issues so difficult for accommodations. Just like law enforcement, The strength of the products has greatly in- employers though is that each of those states who are now having to re-evaluate their drug creased. In the ‘70s, street-level cannabis had have their own laws and provisions, which tests and behavioral tests in order to deter- a THC potency of approximately 1%. In the create headaches and confusion for multi- mine when a driver is impaired, employers ‘90s, the THC potency of street-level cannabis state employers. To add to the headache, are also faced with the same issue identifying increased to approximately 3-4%. Currently, despite cannabis being a Schedule I illegal impairment, rather than use. dispensaries are selling cannabis flower that drug under federal law, the federal legisla- In understanding this new world, it has THC potencies higher than 35% and con- ture did legalize a type of cannabis, hemp. should go without stating, that employers centrates that are as high as 98% THC. USLAW www.uslaw.org 9

DIFFERENT STATE LAWS an individual is impaired for purposes of wrote the drug free workplace policy for- Next, is understanding the different driving while impaired (DWI) charges. got about the policy, it will likely be easy for state laws where your facilities are located. This is helpful for employers as it provides employees without a legal background to Each state has implemented different laws a state-determined testing level for when forget. Thus, it is vitally important for em- regarding cannabis. Even though some may an individual is impaired. For example, in ployers to remind employees of the policies be similar, most if not all, have significant Illinois the legislature amended the vehicle that are in place and compliance with such. differences. For example, the states on the code to provide that an individual with 10 Finally, it should be recognized that west coast, which generally were the first nanograms or more of THC in his or her being a federal contractor or receiving states to legalize, primarily have laws that bodily fluid is impaired by cannabis. For federal funding based upon a requirement do not include any employment protec- Illinois employers, this means that if they that you have a drug free workplace policy, tions. However, the states on the east coast, set their testing level at 10 nanograms or does not automatically exempt you from which legalized later on, primarily have more and a person tests positive, then they updating your policies and procedures. laws that do include employment protec- can use that as a good faith basis of impair- Many federal contracts or funding simply tions. As such, in many of the older legal ment while at work. However, there are still require that the employer implement a cases, which were issued by courts on the questions on how to address drug testing drug free workplace policy in compliance west coast, the courts found in favor of the that is done when the individual is not at with the Federal Drug Free Workplace Act. employer. In many of the newer legal de- work, such as pre-employment drug testing. The problem with the Federal Drug Free cisions, issued by courts on the east coast, After reviewing how you are drug test- Workplace Act is that it does not have any the findings have shifted to being in favor ing, the next step is evaluating what you do requirements regarding drug testing. In of employees. In recent cases, courts in with the results of a drug test. Before taking fact, a court in Connecticut recently held Arizona, Massachusetts, Connecticut and any action, again it is important to under- that compliance with the Federal Drug Free New Jersey, have held that a positive drug stand the applicable state law and case law. Workplace Act simply requires employers to test alone is not sufficient to terminate an For example, in Illinois the recreational have a drug free workplace policy and does employee or revoke a job offer – especially cannabis law and law pro- not require drug testing or prohibit federal if it is in relations to an individual who is a vide that before an employer terminates an contractors from employing someone who registered medical marijuana user. employee, the employee must be provided uses illegal drugs or medical marijuana out- an opportunity to explain. While this is a side of the workplace. UNDERSTANDING POLICIES AND simple step, it is important step that employ- While many questions still remain PROCEDURES ers in Illinois must now take. Additionally, and medicinal usage requires a different After you understand the drug and before disciplining an employee or appli- analysis from recreational use (for now), the applicable state law, the next step is cant who has tested positive, it is important employers can still take steps to limit reviewing and understanding your drug to review whether a medical condition was their exposure and to maintain a safe and testing policies and procedures. In doing involved. Court cases out of Massachusetts, healthy workplace through reasonable such, you must evaluate when and how you Connecticut and New Jersey have all held drug testing policies. That being said, em- are drug testing (i.e. pre-employment, rea- that employers should engage in the interac- ployers must continue to carefully examine sonable suspicion, post-accident/incident, tive process before taking steps to discipline, their own unique industry, risks and risk return to work and follow-up). For exam- terminate or revoke a job offer to a candi- tolerances, together with their geographic ple, with reasonable suspicion, are you date who has tested positive for marijuana, footprint and applicant pool. In doing so, using a reasonable suspicion checklist and but advised that they use it due to a serious it is strongly recommended that employers have you trained your managers and super- medical condition or disability. engage competent legal counsel, who is visor in how to identify drug and alcohol well versed in labor and employment law, impairment. Similarly, do you understand EMPLOYEE EDUCATION as well as cannabis laws, to assist you in the the drug testing procedures? For example, It is also vitally important to educate reviewing process and in addressing diffi- it used to be standard that if an employee all employees on the company policy, as cult situations before they lead to costly and tested positive for a drug, but had a legiti- well as the reason for the company’s pol- time-consuming litigation. mate prescription, that the Medical Review icy. Education is especially important if Officer (MRO) would report it as a nega- the company is prohibiting employees tive test. Now, especially for employees in from possessing it on company property. safety sensitive positions, your MRO should There is no better example of this than the Mike Wong is a partner in qualify a positive drug test (for any drug, city attorney for the city of Seattle. When SmithAmundsen’s Labor & not just cannabis) where the individual has Washington legalized cannabis in 2014, Employment Practice Group. a prescription or is a legal registered user, the city attorney of Seattle, who was a pro- He advises clients regarding by stating that the employee may need to ponent of cannabis, was one of those in their day-to-day employee is- provide a note from his or her treating phy- line to purchase cannabis on the first day. sues, employee handbooks, sician clearing him or her to work or iden- After purchasing cannabis, the city attorney policies and procedures and tifying any work restrictions. walked right back into his office with the represents clients in lawsuits, Likewise, do you know what your cannabis still in his possession. By returning charges of discrimination and administrative testing levels are and are they in line with to work with the cannabis in his possession, matters involving discrimination and harass- the state laws? In many of the states where even though he had not used it, it was a vio- ment, Title VII, ADA disability issues, FMLA recreational cannabis has been legalized, lation of the city’s drug free workplace pol- administration and claims, wage and hour is- much like with alcohol having a blood al- icy, a policy that he had probably reviewed sues, class actions, cannabis in the workplace, cohol content “BAC” level, the state has set and approved. As such, it is important to and other labor and employment issues arising a level for cannabis which indicates when recognize that if an attorney who likely under state, federal and administrative laws.