Manchester Area Human Resources Association

February 12, 2019

LEGAL AND LEGISLATIVE UPDATE

by

Attorney Jim Reidy

Sheehan Phinney Bass & Green PA

1000 Elm Street

Manchester, NH 03105-3701

(603) 627-8217

jreidy@sheehan.com

www.sheehan.com

Live Free and Get High?

New Hampshire employers watch and wonder about possible legalization of marijuana and impact on the workplace.

Now, laughing friends deride,

Tears I cannot hide.

Oh-oh-oh-oh, so I smile and say,

"When a lovely flame dies,

Smoke gets in your eyes."

Smoke gets in your eyes. [apologies to The Platters]

It wasn’t that long ago that the question as to whether marijuana would be legalized, at least for recreational purposes was met with disbelief and in many cases laughter. Now, New Hampshire is surrounded by states (Vermont, Massachusetts and Maine) as well as Canada who have legalized the recreational use of pot. One employer commented recently that we may soon, either through second-hand smoke from our neighbors or with legalization here, have smoke in our eyes too. This isn’t just a New England thing, more than 33 states have now legalized marijuana use in one form or another. Employers across the country are now taking a sober look at their policies and testing practices.

With these changes in recent years to state laws and a significant shift in public opinion favoring the legalization of marijuana, many employers have revisited their drug and alcohol policies. Some no longer ask about drug use at the initial interview or application stage. Others have revised their policies on testing. Others have dropped marijuana from pre-employment drug screens. With record low unemployment numbers many employers, who draw labor in neighboring states where pot is legal, made these changes, at least for certain jobs (not safety sensitive positions) fearing they might disqualify otherwise qualified individuals who might partake in marijuana use on their own time. In other words, employers are often desperate to fill some positions and as long as the person can perform the job as required, they turn a blind eye to an applicant’s possible use of marijuana in off work hours. Many employers simply don’t want to know because once they are on notice they may be compelled to monitor the employee’s work activities fearing liability for work-related claims once they were aware of something that could impair or impact the employee’s activities. This could also compel the employer to test an employee when drug use is suspected. This could cause the employer to terminate the employee’s employment even though there is no legal standard to measure impairment for marijuana use like there is for alcohol. Testing could also result in claims of discrimination (if only certain individuals or groups are tested) or invasion of privacy. Another factor is that marijuana is still classified as an elicit substance under federal drug laws. This is why marijuana has become the new “Don’t Ask, Don’t Tell” policy in the workplace.

A distinction is drawn for safety sensitive positions (e.g. truck drivers, bus drivers, forklift operators, pilots, medical professionals, etc.) where inquiries and testing for drug use including marijuana is not only encouraged but it is often required. That is why many employers are now making distinctions between those positions and other positions in their policies and testing practices.

Medical marijuana use has been legal in New Hampshire for a few years but that hasn’t caused many employers to change their workplace policies and practices. Even if an employee had a prescription for medical marijuana use, most employers treated that like any other prescription (employee couldn’t be impaired at work) with one exception, employers still prohibited the possession and use of marijuana while at work. Employer’s relied on their smoking policies and more particularly, federal drug law, as the reason for that prohibition. Until recently, courts sided with employers in that regard, finding that while marijuana use may have been legalized the state law didn’t require employers to permit use and impairment at work. That may now be changing, at least to the possession and use part, as a few court decisions in other states have now sided with employees, as long as they weren’t impaired at work.

Now the issue of legalized recreational marijuana is before the New Hampshire legislature. Supporters cite individual liberties, criminal justice reform, tax benefits, and the fact that other states have legalized marijuana without serious problems as reasons why New Hampshire should permit and regulate recreational marijuana use. Opponents to the bill warn of the public safety risks (citing an increase in impaired drivers in other states), health risks to teens, increased costs of regulation and an exacerbation of the state’s opioid crisis. The bill, House Bill 481, if passed would allow anyone over 21 to “use” marijuana. That means authorized users could possess, consume, grow, purchase, process or transport marijuana, within certain parameters, without legal retribution. The Governor is opposed to this legalization efforts but there might be enough support in the legislature to override a veto if the bill is passed. In the meantime, because this is an issue employers are already dealing with many are taking a clear-eyed look at their drug and alcohol policies.

Employers who are revisiting these polices should consider a few things including: where they do business; the state laws where they do business; whether they should have one universal policy or one with state-specific addendums; if they are a federal contractor or subcontractor and the requirements that go along with those contracts; if they have DOT or other safety-sensitive positions and if they do; if they should have different policies for positions that are not safety-sensitive; whether they need or want to ask about and test employees for marijuana use at the pre-employment stage; whether they will test during employment and the consequences for a positive drug test; their workplace culture and the impacts of testing  on that culture and the legal consequences of not testing.

Yes, these are interesting times. One HR professional, confused by the state of the law and what to do about her organization’s policy on marijuana, described the situation as a “purple haze”. The reality is that legalized marijuana is here to stay and employers need to decide how they want to handle this fuzzy issue. Ignoring it or relying on out dated policies is not the answer. Taking a fresh look at polices is not only a good idea, it may be required to staying on the right side of the law and embracing the realities and the new workplace.

Attorney Jim Reidy is a partner at Sheehan Phinney where he is the Chair of the Firm’s Labor and Employment law practice group.  Jim is also MAHRA’s VP of Legal and Legislative Affairs.

Disclaimer

Please note: This outline is intended as general guidance and not specific legal advice. Your legal counsel should be consulted with specific questions or for advice on how to proceed with these matters.