Maryland voters earlier this month overwhelmingly supported a constitutional amendment to legalize recreational marijuana, joining 19 other states and the District of Columbia. (Missouri also approved legalization of recreational marijuana on Election Day.) While the voice of the electorate might not come as a surprise, the constitutional amendment may leave Maryland employers with more questions than answers. The passage of the amendment does not immediately impact employers but serves as an opportunity for them to evaluate their current drug testing and discrimination policies. It also a reminder to monitor the quickly expanding cannabis industry, which is bound to continue to impact the workplace.
The Constitutional Amendment
The approved constitutional amendment means that, beginning July 1, 2023, individuals aged 21 and older in Maryland may use and possess marijuana (up to 1.5 ounces of cannabis flower, 12 grams of concentrated cannabis, or a total amount of cannabis products that does not exceed 750 mg of THC). Aside from allowing use and possession, the passage of the ballot referendum also provides for the following actions:
- Establishing an expungement process for cases involving a sole charge of possession of less than 10 grams of cannabis, in addition to other expungement provisions
- Raising the amount of cannabis a person may possess that is subject to a civil fine rather than criminal penalty from 10 grams to 2.5 ounces
- Mandating data collection and studies on cannabis use, impaired driving and other health and safety issues
- Establishing a Cannabis Public Health Advisory Council to make recommendations to the General Assembly regarding cannabis regulation
- Allocating new funding for various public health, business and equitable community initiatives related to the legalization of adult cannabis use in the state
The amendment also requires that the General Assembly pass legislation providing a framework for the use, distribution, possession, regulation and taxation of cannabis within the state. The 2023 legislative session is scheduled to begin January 11 and end April 10.
Takeaways for Employers
While the approved constitutional amendment is certain to trigger further action that will impact workplaces statewide, the text of the amendment does not speak to the implications of legalization on employers. Notably, use and possession of cannabis remains illegal pursuant to the federal Controlled Substances Act of 1970 (CSA). While individual states are authorized to allow use by adults within their borders, transport of marijuana across state lines is still prohibited under federal law. Possession of cannabis also remains prohibited on federal land (including federal buildings, national parks, military bases, etc.), even within states where it is otherwise legal. As noted in the Maryland Medical Cannabis Commission’s new FAQs, cannabis smoking will also continue to be prohibited in all public places and motor vehicles. A “public place” includes indoor and outdoor spaces open to the public, including bars, restaurants, public transportation and indoor places of employment.
When it comes to drug testing policies, even in light of the amendment’s passage, there is presently nothing under Maryland law that prohibits an employer from testing, denying or ending employment for an employee who tests positive for the presence of cannabis. Such restrictions do exist in other states, so employers should be aware of the possibility that Maryland could adopt similar restrictions in the future. In light of this, employers may choose to treat marijuana as an illegal drug and disqualify a candidate for employment who tests positive. Employers subject to federal regulation may be required to take such a position. Because marijuana is legal in Maryland for medical purposes, employers may treat it as a positive test for a prescribed drug and permit the positive test without repercussions if an employee presents an authorized medical marijuana card. Although no cases or guidance in Maryland has gone so far yet, courts in other states have found in favor of employees alleging disability discrimination against employers who failed to accommodate medical marijuana usage, so employers in Maryland may choose to do so to reduce risk. Yet another approach would be to simply remove marijuana from drug testing lists altogether, a step some employers are taking in light of current difficulties with hiring. Regardless of what an employer decides to do in terms of testing, it can continue to prohibit use, possession or being under the influence while at work.
Importantly, we expect to see changes and, with any luck, some clarification of outstanding questions and issues as the regulatory landscape develops in the coming years. Miles & Stockbridge will continue to monitor and report on this quickly changing landscape.
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