Employee Protections
The amended law expressly prohibits an employer from taking any adverse employment action “based solely on the employee’s status” as a “registered qualifying patient.” Notably, the new law’s use of the word “solely” leaves open the question of whether it is permissible for an employer to take an adverse employment action based on an employee’s status as a medical marijuana user plus some other factor, including, for example, the safety-sensitive nature of the employee’s job. A “registered qualifying patient” is defined as an individual who both (1) has been authorized by a healthcare provider for the medical use of cannabis, and (2) has registered with the state’s Cannabis Regulatory Commission. The new law broadly defines “adverse employment action” as “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.”
Employers are also now limited in their ability to enforce zero-tolerance drug policies with respect to medical marijuana. Under the amended law, an employee or job applicant who tests positive for marijuana must be given an opportunity to provide a “legitimate medical explanation for the positive test result,” which includes authorization for medical marijuana use by a healthcare provider, proof of registration for medical marijuana use, or both. Employers are required to inform the employee or applicant of this right to explain by way of a written notice. Then, within three working days of receiving the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or request retesting at the employee or applicant’s own expense.
What Is Not Covered
Notably, the amended law also benefits employers by providing greater clarity on two critical issues. First, the law explicitly states that it does not “restrict an employer’s ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.” Second, the law makes clear that employers need not accommodate the use of medical marijuana when doing so “would cause the employer to be in violation of federal law” or “result in the loss of a federal contract or federal funding.”