Marijuana and the Workplace

In case you missed it, here are the key takeaways from Labor and Employment Attorneys Beth Rattigan and Tim Copeland’s presentation at the March 2018 Granite State HR Conference.

Status of Medical Marijuana Laws in Northern New England

  • Vermont: Effective July 1, 2018, it is legal to possess up to one ounce, plus two mature and four immature plants. Committee is still studying the sale of marijuana.
  • New Hampshire: Possession of marijuana up to .75 ounces is now considered a civil penalty, rather than a criminal offense. While the NH House passed a bill to legalize up to ¾ ounce and up to 6 plants, it is still in committee and not expected to proceed further this year. The sale of marijuana remains a penalty.
  • Maine: Possession of 2.5 ounces or less is legal. The sale of marijuana remains a criminal offense.
  • Massachusetts: There is no penalty for possessing up to one ounce of marijuana. The sale of marijuana remains a crime.
  • Key takeaways:
    • There is relaxation of the possession laws
    • Sale is still prosecutable
    • None of these changes create a “right” for use or possession in the workplace
    • Federal laws have not changed

Medical Marijuana Laws

  • 29 States and the District of Columbia (including Maine, New Hampshire, Vermont and Massachusetts) allow the use of medical marijuana.
  • New Hampshire: Some of the approved conditions could also be considered disabilities, and may require reasonable accommodations. However, an employer is not required to permit marijuana possession or use at work.
  • Vermont: While registered patients, diagnosed with a debilitating medical condition, may be exempt from some criminal and civil penalties, the statute does not create an exemption from arrest or prosecution for being under the influence or for smoking marijuana in a “workplace or place of employment”.
  • Maine: Employers may not discriminate against or refuse to employ a person solely for that person’s status as a qualifying patient. However, a business may prohibit the smoking of marijuana for medical purposes on the business’s premises only if all smoking on the premises is banned.
  • Massachusetts: There is no law requiring accommodation of any on-site medical use of marijuana in any place of employment.

Workplace Drug Testing

  • Maine: Testing is authorized for job applicants; employee testing is authorized if there is probable cause for suspicion of substance abuse.
  • Massachusetts: No statewide statute.
  • New Hampshire: No statewide statute; however, health care facilities must have a policy.
  • Vermont: Testing is allowed with advance written notice, after conditional offer of employment has been made and if test is part of reemployment physical. Random drug testing is prohibited.
  • Note: Federal laws requiring testing such as CDL requirements trump state laws.

Duty to Accommodate?

Recall The Americans with Disabilities Act. It prohibits employers from discriminating against qualified individuals with disabilities, and requires employers to make a reasonable accommodation to the known disability of a qualified applicant or employee, unless it would impose an undue hardship on the operation of the employers business.

Reasonable accommodations include:

  • Adjustments or modifications to enable applicants/employees to perform essential functions. Examples
    • Granting an employee with diabetes regularly-scheduled breaks to eat and monitor blood sugar
    • Schedule changes
    • Leave for medical treatments
    • Attend AA meetings

Unreasonable accommodations:

  • Removing essential functions
  • Open-ended work schedule
  • Indefinite leave
  • Lowering quality or ignoring conduct standards
  • Being under the influence of alcohol/drugs at work

Key takeaways:

  • Marijuana: currently no duty to accommodate under ADA or NH law
  • Alcohol – ADA requires certain accommodations absent undue hardship
  • Drug use – no duty under ADA
  • History of drug use – may have duty to accommodate, absent undue hardship

Related Practice Areas

Labor & Employment Law