By Eric Janson and Adam R. Young
Seyfarth Synopsis: While the votes continue to be tallied in the Presidential election, one thing is certain – it was a BIG night for cannabis in America with five new states approving ballot measures to legalize recreational or medical marijuana.
With these new laws, nearly 110 million Americans (or over 1/3 of the country) will now live in a state where marijuana is legal for adult use. In New Jersey, by a nearly 2-1 margin, voters passed Public Question No. 1 – a constitutional amendment to legalize the use and possession of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana. Advocates believe this may now raise the stakes for neighboring states like New York, Connecticut and Pennsylvania to similarly take up legalization bills pending in their state legislatures out of concern for losing tax revenues to what is expected to now be one of the largest marijuana markets in the country.
Meanwhile in Montana, voters narrowly passed Initiative 190 and Initiative 118 which collectively will permit the use, production and sale of marijuana to adults ages 21 or older. In addition, persons serving marijuana-related sentences that are no longer crimes under these Initiatives may request that their convictions be expunged or may request they be resentenced if they are still incarcerated.
After a failed attempt at adult use legalization in 2016, voters in Arizona finally passed Proposition 207 — also known as the Smart and Safe Act — which permits the possession and use of marijuana for adults ages 21 years or older and permits individuals to grow up to six marijuana plants in their residences. Importantly for Arizona employers, the new law does not restrict the rights of companies to maintain a drug-free workplace or establish workplace policies restricting the use of marijuana by employees or prospective employees. See Section 36-2851(1). Likewise, employers are also not required to allow or accommodate the use, consumption, or possession of marijuana on the job. See Section 36-2851(2).
South Dakota also became the first state to legalize cannabis for medicinal and adult use purposes on the same day, overwhelming passing Constitutional Amendment A which legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older. Initiated Measure 26 also establishes a medical marijuana program for individuals with a “debilitating medical condition” which includes those with “a chronic or debilitating disease or medical condition…that includes severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”
In Mississippi, voters also overwhelmingly passed Initiative 65 which allows doctors in the state to prescribe medical marijuana for patients with at least one of 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson’s disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more. Patients can also possess up to 2.5 ounces of medical marijuana at one time.
Finally, others states took considerable steps in relaxing other drug laws, with voters in Oregon passing ballot measures decriminalizing possession of small amounts of drugs, including cocaine, heroin, methamphetamine and another legalizing the therapeutic use of psilocybin mushrooms (aka “magic mushrooms”). Washington, D.C., also approved measures aimed at decriminalizing psilocybin mushrooms and other psychedelic plants.
While state governments will now be tasked with establishing the various regulatory frameworks needed to implement these new adult use and medicinal marijuana programs, it is undisputed that proponents of legalized marijuana had a very big Election Day and with these new ballot measures, adult use cannabis is now legal in 15 states (and the District of Columbia) and medicinal use of cannabis is legal in 35 states (and D.C.).
We have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.
While 15 states will soon permit the recreational use of marijuana, employers may maintain a range of restrictions on employee possession, use, and impairment by marijuana, cannabis, and related products. Employers may also continue pursuing drug testing options, particularly for safety-sensitive employees, to address the hazard and ensure that no employees work under the influence of drugs.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Cannabis Law Practice Teams.