By Katherine Miller
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It is an undeniable fact that 2020 has brought about many changes that were unfathomable in prior years. However, one thing that was known going in to 2020 was that the November elections would likely bring about change regarding marijuana legalization. In total, five states are voting on some sort of marijuana legalization this November. This article will provide an overview of these various legalization measures.
Arizona Proposition 207
Arizona already has legal medical marijuana, meaning that voters will be weighing in only on recreational marijuana. Proposition 207 (Prop 207) would permit adult (ages 21 and older) possession, consumption, and transfer of marijuana and create a framework for cultivation and sales. Prop 207 provides protections for employers, namely stating that “Employers retain their rights to maintain drug-and-alcohol-free places of employment.”[1]
Specifically, Prop 207 protects employer rights to have workplace policies restricting the use of marijuana by employees and applicants. Employers are not required to accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivation of marijuana in the workplace.[2] Driving while “impaired to even the slightest degree by marijuana” is strictly prohibited.[3] Employers are not restricted in their ability to prohibit or regulate conduct that is permitted by Prop 207 when such acts occur on business property.[4]
Montana I-190 and CI-118
Montana has two competing ballot initiatives this November, Montana I-190 (I-190) and Montana CI-118 (CI-118). Montana already has legal medical marijuana, so both initiatives pertain to legal recreational marijuana.
I-190 does not require employer to permit or accommodate recreational marijuana in the workplace or while on work property.[5] Employers are not prohibited from disciplining employees if they violate their workplace drug and alcohol policy or if they work while intoxicated by marijuana.[6] Employers are permitted to deny an applicant a position and discharge, discipline, or take adverse employment action against employees based on a violation of a drug and alcohol policy or if the individual works while intoxicated by marijuana.[7]
CI-118 would amend the Montana constitution to allow for a minimum age to be established for the use, possession, and purchase of marijuana either via the legislature or via a citizen’s initiative. The initiative does not include a regulatory framework for the growth, distribution, or sale of marijuana. Additionally, it includes no guidance for employers.
Mississippi Initiative 65 and Alternative 65A
Mississippi has two competing medical marijuana initiatives that will be voted on in November, Initiative 65 and Alternative 65A. Initiative 65 would amend the state constitution to permit medical marijuana in the state, and Alternative 65A is an alternative measure that was proposed by the legislature. Voters can only choose to vote for one or the other measure, or no measure at all.
The main difference between the two measures is that Initiative 65 contains many more details than Alternative 65A, which would leave many of the details up to the legislature to decide. Neither Initiative 65 nor Alternative 65A contains any information pertaining to medical marijuana and the workplace.
New Jersey Public Question 1
New Jersey is another state that is voting on recreational marijuana use in November. New Jersey Public Question 1 (Question 1) would legalize the possession and use of marijuana for those ages 21 and older by amending the state constitution. Question 1, as written, only legalizes use and possession and places a limit on sales tax. Should the amendment pass, it is likely that we will see legislation pertaining to a regulatory framework for the substance as well as potential legislation pertaining to marijuana and the workplace.
South Dakota Measure 26 and Amendment A
South Dakota is unique on this list in the fact that it currently has neither legal medical nor recreational marijuana, but voters will be voting on both in November. Measure 26 would legalize medical marijuana while Amendment A would legalize recreational marijuana. Voters could potentially only pass one or the other or could pass both.
Measure 26 prohibits individuals from “undertaking any task under the influence of cannabis when doing so would constitute negligence or professional malpractice.”[8] Additionally, the measure states that an individual is prohibited from operating any motor vehicle while under the influence of cannabis; however, the measure continues to state that a registered marijuana user is not considered under the influence solely because of cannabis metabolites that appear in insufficient quantities to cause impairment.[9] Pertaining to medical marijuana use in the workplace, the measure states that if the measure conflicts with an employer’s obligations under federal laws or regulations in a way that would disqualify them from monetary or licensing-related benefit, the measure does not apply.[10] Employers are not required to permit medical marijuana ingestion in the workplace and are not required to permit employees to work while under the influence of marijuana. Qualifying medical marijuana patients are not to be considered as under the influence solely because of the presence of marijuana metabolites or components that appear in “insufficient concentration to cause impairment.”[11]
Amendment A would amend the state constitution to legalize recreational marijuana and would require the legislature to pass laws providing for medical marijuana and hemp sales. Amendment A would prohibit individuals from “undertaking any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice.”[12] Employers are not required to permit or accommodate the use of recreational marijuana and are not limited in their ability to restrict employee’s use of marijuana.[13]
The 2020 Elections
The November elections will tell if Arizona, Montana, Mississippi, New Jersey, and South Dakota will pass the above described marijuana initiatives. Undoubtedly, 2020 will bring about more change, likely in the arena of workplace drug and alcohol testing.
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[1] Arizona. Smart and Safe Arizona Act. Proposition 270 Section 2-2(c).
[2] Arizona. Smart and Safe Arizona Act. Proposition 270 36-2851-2.
[3] Arizona. Smart and Safe Arizona Act. Proposition 270 36-2851-3.
[4] Arizona. Smart and Safe Arizona Act. Proposition 270 36-2851-6.
[5] Montana. Marijuana Legalization and Tax Initiative. I-190-16-2(a).
[6] Montana. Marijuana Legalization and Tax Initiative. I-190-16-2(b).
[7] Montana. Marijuana Legalization and Tax Initiative. I-190-16-2(c).
[8] South Dakota. An initiated measure to legalize marijuana for medical use. Measure 26 Section 18(1).
[9] South Dakota. An initiated measure to legalize marijuana for medical use. Measure 26 Section 18(4).
[10] South Dakota. An initiated measure to legalize marijuana for medical use. Measure 26 Section 23.
[11] South Dakota. An initiated measure to legalize marijuana for medical use. Measure 26 Section 24.
[12] South Dakota. Marijuana Legalization Initiative. Amendment A §2(12).
[13] South Dakota. Marijuana Legalization Initiative. Amendment A §3(1) and (2).
