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HomeEmploymentIs Biden about to make marijuana authorized?: Employment & Labor Insider

Is Biden about to make marijuana authorized?: Employment & Labor Insider


Yesterday, President Biden introduced that he was pardoning everybody who was criminally convicted of easy possession of marijuana underneath federal legislation. He is additionally requested state governors to do the identical.

The third a part of his announcement is of potential significance to employers: The President mentioned that he would ask the Secretary of Well being and Human Providers and the Legal professional Normal to evaluate whether or not marijuana must be “demoted” from a Schedule I managed substance (any use unlawful) to a decrease class. “The federal authorities presently classifies marijuana as a Schedule I substance,” the President mentioned, “the identical as heroin and LSD and extra severe than fentanyl. It is not sensible.”

The medicine on Schedules II-V are authorized with various ranges of restriction. The entire Schedules, with examples, can be found right here.

If marijuana will get a “demotion,” this could possibly be a giant deal to employers — particularly these within the dwindling variety of states the place marijuana use continues to be unlawful. 

The Individuals with Disabilities Act doesn’t shield present customers of unlawful medicine. As a result of marijuana is presently an unlawful drug underneath all circumstances underneath federal legislation, present customers of marijuana don’t have any safety underneath the ADA . . . presently.

The ADA additionally says that testing for unlawful medicine just isn’t a “medical examination” topic to the ADA’s restrictions on such. (There are main {qualifications} to that normal rule, which is why just about all employers wait till the post-offer stage to conduct drug checks.) If marijuana strikes to a different Schedule, pre-employment drug checks presumably must both (a) not embody testing for marijuana, or (b) all the time be carried out post-offer (which, once more, they most likely are, anyway). If an offeree checks constructive, the employer might need to contemplate making cheap lodging somewhat than merely withdrawing the provide. Not less than, for positions that aren’t safety-sensitive.

And employers who conduct random or common testing of present workers might not be capable to embody marijuana within the panel of medicine for which they check. As with alcohol, presumably employers can be allowed to check for marijuana provided that there have been some kind of “trigger” — that’s, cheap suspicion, post-accident, and topic to a last-chance settlement. 

(The place testing for marijuana is required by one other federal legislation, such because the laws of the U.S. Division of Transportation, there shouldn’t be an ADA concern.)

Not too terribly way back, in a submit for employers with operations in states the place marijuana was authorized, I beneficial treating marijuana use the identical means one would deal with alcohol use. In different phrases, tolerate it, however do not let individuals devour throughout working hours or be underneath the affect whereas on responsibility. I nonetheless suppose that is the way in which to go, however . . . 

. . . we now have one other downside. With marijuana, versus alcohol, there is no such thing as a usually acknowledged commonplace of being “underneath the affect.” In a state the place all marijuana use is against the law, that is not a priority as a result of any stage of marijuana within the system would justify withdrawal of a job provide, obligatory rehabilitation, or termination of employment. But when employers can take motion in opposition to an worker for marijuana use provided that the worker is “underneath the affect,” then how will the employer know when it will possibly legally check?

State marijuana legal guidelines (as of April 2022)

And, lastly, we now have the problem of cheap lodging underneath the ADA. If marijuana strikes right into a decrease class, employers would presumably be required by the ADA to contemplate cheap lodging for a lot of, if not most, customers of medical marijuana.

P.S. On November 8, 5 extra states (Arkansas, Maryland, Missouri, and the Dakotas) could have referenda on whether or not to legalize all grownup use of marijuana. These states presently permit medical use however not leisure use.

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