In South Dakota news, a company in Sioux Falls is hosting its first mass medical marijuana patient screening. It has been nineteen months since South Dakotans voted to legalize medical marijuana, and, as of April 26, 2022, approximately 500 patients have been certified by the South Dakota Department of Health for a medical marijuana identification card. Although obtaining a medical marijuana card in South Dakota remains challenging, municipalities across the State have begun licensing businesses to dispense medical cannabis, and use will only increase, presenting a variety questions for the employers of the individuals who take advantage of South Dakota’s new laws regarding medical marijuana.

In recent months, a few states have taken up legislation to address some lingering questions regarding the use of medical marijuana in the workplace. Recently, Minnesota updated its Medical Cannabis Act to include, among other things, a prohibition on smoking medical cannabis in any public place of employment. This update also amended the definition of medical cannabis to allow delivery of medical cannabis via combustion of dried raw cannabis. In other words, they are now allowed to smoke it, making it cheaper and more accessible for program participants.

This week, California considered legislation that would amend California’s employment anti-discrimination law, the Fair Employment and Housing Act (FEHA), to address the use of marijuana in the workplace. First, the California legislation makes it an unlawful practice for an employer to discrimination against an adult applicant or employee based on the “person’s use of cannabis off the job and away from the workplace.” The California legislation would also prevent discrimination against an applicant or employee who fails a drug test detecting “nonpsychoactive cannabis metabolites in their urine, blood, hair, or bodily fluids.” It would not, however, permit an employee “to be impaired by, or to use cannabis on the job” or affect “the rights or obligations of an employer to maintain a drug and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code.” Finally, the bill includes carveouts for the building and construction trades, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces, and it excludes occupations that are required by federal or state laws to be tested for controlled substances.

These and other states’ efforts to address the use of medical marijuana in the workplace demonstrate that these issues will only continue to percolate. While the law in this area continues to quickly evolve, leaving employers with many questions, one lodestar seems to be an employer’s right (and obligation) to maintain a safe workplace for its employees. After all, even the California legislation, which grants employees broad protections, does not extend to employees impaired by medical marijuana at their place of employment or during the hours of employment, and it further excludes a variety of provisions allowing employers to maintain their obligation to ensure a safe workplace. Put simply, if an employee’s use of medical marijuana poses a risk to him or her and his or her co-workers, then the employer has a right to address that with the employee.

These changes should prompt employers to take a more careful look at their employee handbooks and drug testing policies. First, a drug testing policy should include language that allows applicants or employees an opportunity to explain a positive result on a drug test so that each situation may be addressed on an individualized, case-by-case basis. Many prescription drugs may result in a positive result on a drug test, and, as a result, a bright-line rule that an applicant not be hired or that an employee be terminated for a positive test result may run afoul of the Americans with Disabilities Act. Furthermore, a drug testing policy should include language regarding the procedure for confirming an applicant’s or employee’s enrollment in a legal medical marijuana program, particularly in the event of a positive test result. Finally, as medical marijuana programs expand, your employee handbook should include a policy regarding the use and possession of medical marijuana at their place of employment or during the hours of employment.

Again, the law in this area continues to change and evolve. If you have questions about how to address use of medical marijuana in your workplace, you should consider seeking legal advice to implement appropriate policies in your business.