Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As has become common in recent years (and despite marijuana’s continued illegality under federal law), citizens in several states voted on marijuana-related measures this election cycle. Advocates in two states—Michigan and North Dakota1—placed initiatives on the ballot to legalize the recreational use of marijuana. Missouri and Utah voters, meanwhile, weighed proposals to allow marijuana for medicinal purposes. While measures succeeded in Michigan, Missouri and Utah, employers should bear in mind that none of these legalization efforts expressly change state employment law.
Michigan became the first Mid-West state to embrace the recreational use of marijuana, as voters endorsed Proposal 1 at the ballot box.2 The new law will allow adults age 21 or over to possess, consume, purchase, and transport up to 2.5 ounces of marijuana and/or 15 grams of marijuana concentrate. Individuals may also store up to 10 ounces of marijuana at their homes and cultivate as many as 12 plants for their personal use.
According to the spokesperson for Michigan’s Secretary of State, Proposal 1 will take effect 10 days following the certification of the election results, which should occur by November 26, 2018.3 As a result, adults in Michigan will likely be able to use and possess marijuana in early December 2018.
Retail sales will follow much later, once mechanisms are established for the commercial growing and marketing of marijuana. Within one year of Proposal 1’s effective date, the state Department of Licensing and Regulatory Affairs is obligated to promulgate rules governing the licensing and operation of marijuana establishments. Such regulations must cover topics such as cultivation safety, labelling, security requirements, sales, and advertising of marijuana products. Penalties, including civil fines, may be imposed. If the department fails to timely issue such rules, individuals may apply directly to municipalities for licenses to open dispensaries.
Municipalities are permitted to adopt ordinances restricting or prohibiting marijuana vendors. Moreover, Proposal 1 specifically states that it “does not require an employer to permit or accommodate” marijuana use “in any workplace or on the employer’s property.” As in other jurisdictions with recreational marijuana laws, Michigan employers may continue to discipline employees (up to and including termination) for violations of drug-free workplace policies or for working while impaired by marijuana. Driving under the influence, and public consumption of marijuana and marijuana products, are also prohibited.
In the Show-Me State, residents were presented with three separate initiatives in support of medical marijuana: two competing constitutional amendments and a statutory proposal.4 Most successful, and therefore the adopted law, was Amendment 2,5 which creates a new section to the state constitution that cannot be revised by the legislature.
Under Amendment 2, Missouri residents who suffer from at least one “qualifying medical condition,” or their caregivers, will be entitled to obtain identification cards from the state Department of Health and Senior Services enabling the holder to purchase marijuana and marijuana-infused products, which may be consumed to alleviate the effects of the medical condition. “Qualifying medical conditions” include conditions, symptoms, or side-effects of treatment related to cancer, epilepsy, glaucoma, intractable migraines, certain chronic conditions (such as Parkinson’s disease), debilitating psychiatric disorders, HIV or AIDS, terminal illnesses, and other conditions. Amendment 2 greatly expands the scope of existing law, which currently permits only the limited use of cannabidiol products for individuals with intractable epilepsy.6 Advocates expect that the passage of Amendment 2 will permit up to 200,000 eligible patients in Missouri access to marijuana and marijuana products.7
Once the expanded program is in effect, cardholders will be permitted to purchase a minimum of four ounces of dried, unprocessed marijuana, or its equivalent, per 30-day period. The department may set limits on the amounts that may be purchased, possessed, or cultivated by a qualifying patient or caregiver, subject to certain restrictions.8 The department must issue rules as needed to implement and enforce Amendment 2. For example, within 180 days of the law’s December 6, 2018 effective date—that is, on or by June 4, 2019—the department must make available both cardholder application materials and licensing application materials for potential cultivation, testing, manufacturing, and dispensary facilities.
Amendment 2 does not grant employees who use marijuana special workplace protections. Indeed, it explains that employees may not sue employers for “wrongful discharge, discrimination, or any similar cause of action” if employers prohibit employees from working or attempting to work while under the influence of marijuana or discipline them for doing so. Qualifying patients may not consume marijuana in public and may not operate any dangerous devices or vehicles while under the influence.
Voters in Utah also appeared to approve a medical marijuana ballot initiative, Proposition 2,9 although that law may be superseded or modified by legislative amendments.
Proposition 2 allows state residents who are at least 18 years old to obtain a medical cannabis card based on a physician’s recommendation, if they have a qualifying illness or associated symptoms.10 Qualifying conditions include, for example, HIV, Alzheimer’s disease, cancer, Crohn’s disease, epilepsy, autism, and other conditions resulting in chronic or debilitating pain.
Pursuant to Proposition 2, the state Department of Health must begin issuing cards to qualified individuals or their designated caregivers no later than March 1, 2020, and within 15 days after eligible applications are received. Cardholders may purchase, possess, and transport medical cannabis products (up to four ounces) and may grow up to six cannabis plants for personal use if the patient’s primary residence is more than 100 miles from a licensed dispensary. While Proposition 2 includes some protections for cardholders for purposes of receiving medical care and renting property, it does not shield employees from consequences for marijuana use in the employment context.
Nonetheless, the terms of Proposition 2 may be revised by a legislative proposal that was crafted even before the polls opened.11 As criticism of Proposition 2’s perceived flaws increased in recent months, opponents and supporters of the measure, along with other stakeholders and lawmakers, began working on a compromise. Governor Gary Herbert (R) intends to convene a special legislative session to try and develop and pass the compromise bill, perhaps as early as the first week of December. One version of the compromise measure includes employment protections for state and local government workers who are medical cannabis cardholders—although a prior version had extended antidiscrimination protections to private-sector employees as well.12 Employers in the Beehive State should stay tuned for future developments on the bill’s progress.
The legalization, and overall public acceptance,13 of marijuana use continues to spread. In addition to Michigan, Missouri and Utah, a few other states—and Canada!— approved either recreational or medical marijuana or cannabidiol use in 2018.14 Employers across the country should keep current on this trending topic, evaluate how these myriad new laws may affect their policies and procedures, and communicate expectations to employees.
1 As reported here by the secretary of state, the North Dakota measure failed, with roughly 60% of the electorate rejecting the proposal. Unlike recreational use laws in other states, the North Dakota version neither limited the amount of marijuana that could be possessed or cultivated, nor set forth regulations for production and sales. See Tom Angell, North Dakota Marijuana Legalization Measure Fails, Forbes, Nov. 6, 2018.
2 Michigan adopted a medical marijuana law in 2008. See Mich. Comp. Laws § 333.26427.
3 Jonathan Oosting, When is marijuana legal in Michigan? What to know about passage of Proposal 1, Detroit News, Nov. 7, 2018.
4 See Michael J. Lotito, WPI State of the States: What State and Local Measures Will Appear on the Ballot?, WPI Report (Nov. 1, 2018).
5 Results for all three alternatives are available here from the Missouri secretary of state.
6 Mo. Rev. Stat. Ann. §§ 192.945, 195.207, 261.265.
7 Gregory J. Holman, Missouri voters have spoken on medical marijuana. They chose Amendment 2., Springfield News-Leader, Nov. 7, 2018.
8 For example, Amendment 2 states that the department may set upper limits on possession but guarantees that cardholders may have at least a 60-day supply on hand.
9 Results thus far, available here, show that approximately 53% of Utah voters favored Proposition 2.
10 Approvals may also be issued by a compassionate use board, to be created under Proposition 2.
11 See Bethany Rodgers, Utahns approve medical marijuana as LDS Church, a Prop 2 foe, reaffirms backing for legislative approach, Salt Lake Trib., Nov. 7, 2018; Ben Lockhart, Medical marijuana ballot initiative has about 53 percent support from voters as results roll in, Deseret News, Nov. 6, 2018.
12 Bethany Rodgers, An updated draft of the medical cannabis bill was released on election eve. Here’s what it says., Salt Lake Trib., Nov. 6, 2018. That draft bill is available here.
13 According to Pew research data released in October 2018, 62% of Americans believe that marijuana should be legalized. Hannah Hartig and Abigail Geiger, About six-in-ten Americans support marijuana legalization, Pew Research Center (Oct. 8, 2018).
14 For example, Oklahoma legalized medical marijuana, effective July 26, 2018. Vermont legalized marijuana for recreational use. See also Monty Verlint and Rhonda B. Levy, Canada: The Legalization of Recreational Marijuana Doesn't Translate into a Free-for-All in the Workplace, Littler Insight (Oct. 19, 2018).