Cannabis’ Long-Awaited Tipping Point
The movement to legalize cannabis consumption continued Election Day as voters in five (5) states approved new laws allowing medical and recreational cannabis use. In Arizona, Montana, and New Jersey – where medicinal use is already permitted – voters approved recreational use.
Tuesday’s election was a historic victory for cannabis legalization initiatives across the United States. Every cannabis-specific measure on the ballot passed and by never-before-seen margins. Before this election, California’s Prop 64 in 2016 had the highest percentage of voter support at fifty-seven percent (57%).
This year adult-use cannabis passed in Arizona, Montana, New Jersey, and South Dakota by sixty percent (60%), fifty-seven percent (57%), sixty-seven percent (67%), and fifty-three percent (53%), respectively. Public support for medical and adult-use cannabis has reached an all-time high in the United States.
Mississippi voters decided to legalize medical cannabis in the state, and South Dakota voters agreed to legalize both recreational and medical use. Although all cannabis use is still illegal under federal law, thirty-five (35) states now will allow medical use, and fifteen (15) of those states and Washington, D.C., also will allow recreational cannabis use.
The election results regarding medical and recreational cannabis use are indicative of the wave of cannabis legalization that we are seeing across the country. New Jersey’s results will likely be the spark to ignite the legalization of recreational cannabis in many eastern states like New York, Connecticut, and Pennsylvania. The Mississippi vote to legalize medical cannabis is also interesting, as other southern states may follow suit.
Cannabis Laws Vary
Employers in these newly legalized states will need to review their policies and practices to ensure compliance with new laws. Most states already allow cannabis use for medicinal purposes, but the details of these laws vary.
Under medical cannabis laws, covered patients and their caregivers generally must receive a certification from a medical practitioner and be registered with the state, but the qualifying medical conditions for which cannabis can be used can differ significantly from state to state.
States may also pass employment protections to prohibit employers from taking adverse employment actions against employees due to their cannabis use or status as a registered medical cannabis patient. New York and New Jersey, for example, have already codified certain employment protections for medical cannabis users.
Further, employers should also be wary of any potential duty to accommodate medical cannabis users if medical cannabis is legalized. Employers never have to accommodate on-the-job cannabis use, but they may want to change blanket policies that exclude cannabis users from employment.
Reasonable accommodation may not be available for a given job, but employers may need to make a good-faith effort to find one for registered medical cannabis patients, such as granting time off or altering shifts while the worker is medicated.
Not surprisingly, state laws also vary greatly when it comes to the recreational use of cannabis. Each state that allows the use of recreational cannabis strictly regulates where it can be purchased and consumed and how much can be grown at home.
However, that states that allow recreational cannabis use nonetheless make it clear that employers can usually discipline employees for violating a workplace drug policy. Drug-testing procedures may need to be modified as well. Under New Jersey cannabis law, for example, employers must comply with certain notification requirements if an employee tests positive for cannabis use.
A few jurisdictions, such as New York City and Nevada, prohibit employers from making an adverse hiring decision based on a pre-employment cannabis screen, but they allow for some exceptions. Given the added red tape, some employers may decide to stop testing applicants and employees for the presence of cannabis altogether.
State-by-State Cannabis Law Reforms
As most had expected, cannabis reform was a big winner on Election Night. In five (5) states – South Dakota, Mississippi, Arizona, Montana, and New Jersey – voters headed to the polls and let it be known that they want medical or adult-use cannabis.
And in one (1) state, voters said yes to both cannabis laws at the same time. The cannabis clean sweep appears to signal another momentous milestone for the cannabis movement that now reaches well across the aisle. As cannabis reform moves closer to a bipartisan topic with each election, the five (5) states to pass regulations this time around send several messages to the nation.
Not only is America ready for legal cannabis, but the message it sent could have been even more substantial had it not been for the pandemic and some lingering opposition in some states. Here’s how the results played out in each state’s ballot questions.
After failing to pass adult-use cannabis reform through the legislature in previous years, voters for New Jersey’s new cannabis industry sent lawmakers a loud and clear message. With nearly sixty-seven percent (67%) of the vote, Garden State citizens want lawmakers to finish the job now.
It does not appear that citizens need to worry about the effort not moving through Congress this time. With the vote looking overwhelming likely to pass, reports said that lawmakers began working on the final law before results were announced. On Tuesday, Sen. Nicholas Scutari said he had plans to introduce the bill on Thursday. Plans would then call for a public hearing that Monday.
Scutari said that the proposed bill is primarily the same as the 2019 proposal, which calls for a roughly eight-and-a-half percent (8.5%) tax rate when state and municipal taxes are combined. Still, several critical specifics of the bill remain to be seen. They include parameters, including home growing.
New Jersey expects to set off a new wave of legislation in the Northeast. Experts in cannabis and policy spaces often predicted that once one Northeast domino fell, so too would others. If true, then New York, Pennsylvania, and Connecticut could all soon pass similar laws.
The second time was the charm for Arizona’s new recreational cannabis industry, which failed to pass adult-use in 2016. Prop 207, (aka “the pot prop”), passed with sixty percent (60%) of the vote this time around. Ballots must be certified, which could delay an announcement for roughly one (1) month. However, barring a surprise, the measure will pass.
If so, adults twenty-one (21) and over can possess up to one (1) ounce of flower with a five (5) gram cap on concentrates. The state now has until April 5, 2021, to establish the regulations for its recreational marketplace. Morgan Fox, media relations director for the National Cannabis Industry Association (NCIA), said the state gained significant support this time around. “That’s kind of analogous to how much support we saw in New Jersey,” he noted.
South Dakota’s new cannabis industry made American reform history on Election Night. The Mount Rushmore State approved both medical and adult-use ballot questions. Citizens supported the medical measure with sixty-nine percent (69%) of the vote, while adult-use earned fifty-three percent (53%).
No state has simultaneously created a medical and adult-use market. Rather, the common path has been for a state to pass some medicinal laws before recreational would be approved down the line.
In a press release heralding the dual passing, Erik Altieri, National Organization for the Reform of Marijuana Laws (NORML) executive director, said that: “These votes are a stunning rebuke to those elected officials that for decades have refused to move forward with substantive cannabis law reform legislation, and they are yet another indication of the near-universal popularity of these policy changes among voters in all regions of the United States.”
NORML’s press release also stated that one (1) in ten (10) arrests in the state during 2018 was cannabis-related. South Dakota was not the only conservative state to pass legislation, as two (2) others joined in the effort.
A late October effort to derail Montana’s new cannabis industry for adult-use proved fruitless. In the end, Montanans let their voices be heard on two (2) cannabis-related ballot initiatives. In addition to recreational laws, another question sought to set the age of consumption at twenty-one (21).
Both measures passed. I-90, the effort to pass adult-use laws, was approved with fifty-six percent (56%) of the vote. The law also allows those convicted of cannabis crimes to become eligible for expungement or resentencing. Home cultivation is approved as well, as is a twenty percent (20%) sales tax on products.
NORML’s Altieri said the win helps demonstrate how cannabis reaches across the aisle. “Cannabis legalization is not exclusively a “blue” state issue, but an issue that is supported by a majority of all Americans – regardless of party politics,” he said in a press release.
Mississippi’s new cannabis industry made up the final member in the trio of conservative states to pass cannabis reform laws. The ballot did NOT make it easy either. Voters had two (2) cannabis measures to choose from. While similar in name, the two (2) bills were rather varied in scope.
A more robust program offered under the advocated-backed Initiative 65 included over twenty (20) qualifying conditions and a two-and-a-half (2.5) ounce possession cap. The government-backed Initiative 65A would set up a narrower plan, covering fewer qualifying conditions, leaving much of the law to be determined by a legislature that was primarily opposed to the measure.
The vote had an extra hurdle to overcome, as Mississippians had to first vote “YES” on Ballot Measure 1, which indicated an intention to vote on the medical cannabis question. From there, voters had to choose between either Initiative 65 or 65A.
Nearly sixty-eight percent (68%) of voters chose to vote on the medical measure. Of those who voted, seventy-four percent (74%) opted for Initiative 65. NCIA’s Fox commended Mississippi voters for overcoming a confusing ballot and registering an overwhelming vote for reform. Fox said the huge margin “really shows when the electorate is on the issue.”
What’s Next For American Cannabis Reform?
Another wave of cannabis reform could happen in 2022 or 2024. If true, then we could very well likely see cannabis reaching further across the aisle in just a few years. The result could finally cement cannabis as a unifying topic when the nation desperately needs more of them.
NCIA’s Fox said opposing lawmakers may now need to reconsider the effects of standing in the way of cannabis reform. “I think conservatives, particularly in Congress, have to realize that this issue is gaining steam across the political spectrum,” he said.
Fox added, “There could potentially be political consequences for trying to impede progress at either the state or federal level.”
Employers Review Cannabis Policies
Employers grappling with new cannabis laws should be thinking about three (3) major questions:
- If the employer currently conducts drug tests, does it want to continue drug testing if cannabis use is legalized?
- What policies will need to be added or updated if new laws are passed?
- Will the employer be required to provide reasonable accommodation for registered medical cannabis patients?
Employers have an obligation to maintain a safe workplace, and employers who are federal contractors have obligations to comply with the Drug-Free Workplace Act and employers should have strong policies in place that address impairment at work.
It has been widely suggested to treat cannabis use like alcohol or prescription drug use. Cannabis screens don’t show whether someone is currently under the influence like alcohol tests do, so employers should consider stating in their policies that they will discipline an employee who displays behaviors of intoxication or impairment.
Safety is paramount so employers in these newly legalized states will take a step back and look at policies from a global perspective. Employers shouldn’t sacrifice safety considering the recent trend to legalize cannabis, but which policies will best protect employee health and safety?
Employers will need to decide whether they will have the same drug-testing policy for every role or if drug testing is more critical for some jobs than others. For example, different policies may apply to office workers than forklift drivers.
The key takeaway from all of this is that employers need to clearly convey their policies to employees, modify their handbooks to comply with changing laws, and apply discipline in a consistent manner.
Let us know what you think.