Category Archives: Marijuana

Legalized Marijuana, Non-Citizens and Immigration Risks

Contributed by Jacqueline Lentini McCullough, August 22, 2019

book with words “immigration law” and glasses.

In May, we reported on Illinois becoming the eleventh state to permit recreational marijuana beginning January 1, 2020. Noncitizens in these eleven states and the District of Columbia may reasonably conclude that using marijuana in accordance with state law will have no bearing on immigration status. Unfortunately, that is a wrong assumption. Federal law controls immigration, and it remains a federal offense to possess marijuana. For the unsuspecting foreign national, this is a legal distinction that many will not understand. Customs and Border Protection (CBP) Officers at the nation’s borders are the first line of defense in preventing illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP Officers will continue to enforce the law.

For immigrant marijuana users, federal law prohibits the use of federal funds to prosecute state-legal medical cannabis, but allows funds to prosecute state-legal recreational cannabis, thus creating an enforcement distinction. There will also be increased scrutiny relating to travel outside the U.S. for green card and Naturalization applicants.

In some jurisdictions such as Colorado, the U.S. Citizenship and Immigration Service (USCIS) is adding questions to the Adjustment of Status (green card) interview and medical examination process to determine if a foreign national uses marijuana or has in the past.

Naturalization

Naturalization eligibility requires the individual to establish “good moral character,” as defined in the Immigration and Nationality Act. A person who engaged in certain conduct as described in the Act is statutorily barred from establishing good moral character. In states such as Washington and Colorado where marijuana has been legal since 2012, the USCIS is aggressively questioning Naturalization applicants regarding marijuana use. For example, a legal permanent resident (LPR) who is applying for Naturalization, and who is in possession of marijuana is barred under federal law from establishing good moral character. The individual will be found to be inadmissible.

Any arriving foreign national who is determined to be a drug abuser or addict or who is convicted of, or admits to committing acts which constitute the essential elements of a violation of any law or regulation of the U.S relating to a controlled substance, is inadmissible to the U.S. Furthermore, a naturalization applicant who has admitted possessing marijuana to a federal government official must not travel outside the U.S. The person may be found inadmissible upon reentry.

There are several legislative efforts afoot in Congress to resolve the complex issues created by the conflict between federal and state cannabis laws. In the meantime, though, noncitizens should take a very conservative approach.  

Takeaways for noncitizens living in the U.S.:

  • Never discuss conduct regarding marijuana with a government official such as a CBP Officer, USCIS, Embassies/Consulates abroad, et al.;
  • If you live in a state that legalized marijuana consumption, do not use it until you are a U.S. citizen;
  • Do not carry a medical marijuana card, pot related stickers, T-shirts, or paraphernalia, and delete any mention of marijuana on social media; and
  • If you’ve worked in the marijuana industry, obtain legal counsel before leaving the U.S. or applying for Naturalization

Stay tuned for further developments in this growing area of law.

Nevada & NYC Roll Out Pre-Employment Cannabis Drug Screening Restrictions

Contributed by Noah A. Frank, July 2, 2019

gavel and scales of justice

Pre-employment drug screening for marijuana is starting to create exposure for employers.  In several states, including Connecticut, Maine and Massachusetts, courts have ruled that employees have a valid claim against an employer for terminating or pulling a job offer because the employee tested positive for marijuana during the pre-employment stage, in order to enforce a drug-free workplace policy. In fact, Illinois’ new recreational cannabis law, effective January 1, 2020, infers that employers could face a claim under Illinois’ Workplace Privacy law for doing the same. 

More recently though, Nevada and New York City passed first-of-their-kind laws expressly restricting pre-employment drug screening for marijuana, respectively effective January 1, 2020 and May 10, 2020.  While Nevada’s Assembly Bill 132 prohibits employers from failing or refusing to hire an applicant because a pre-employment drug screen shows the presence of marijuana, NYC’s Int. No. 1445-A prohibits testing for THC and marijuana in the first place. Employers must understand the significant impacts of these laws, and plan accordingly.

Exceptions

Neither law applies to the extent it is inconsistent with a CBA, federal law (including Department of Transportation regulations), or a position funded by Federal funds (reminder: cannabis is still Federally unlawful, even though Congress has curtailed the DOJ’s enforcement of marijuana where lawful for medical (not adult use) purposes and approved extraction of CBD from hemp). Nevada’s law further does not apply if inconsistent with an employment contract; while NYC exempts positions requiring compliance with other NYC and NY State law. 

In Nevada, positive tests can be used to weed out (pun intended) applicants for positions as firefighter and EMT, operators of motor vehicles for which federal or state law require substance testing, and positions that in the determination of the employer could adversely affect the safety of others; an employee tested in the first 30 days of employment can, at his/her own expense, submit to additional screening to rebut an employer’s initial screening. 

NYC permits pre-employment testing for police and other officers; positions requiring a CDL or supervision of children, medical patients, or vulnerable persons; or any position with the potential to significantly impact the health or safety of employees or members of the public – but only as determined by “the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services” or the chairperson. NYC is expected to promulgate further rules.

Penalties

NYC’s law amends its civil rights law, which provides for injunctive relief (e.g., an order to hire the applicant), back pay/front pay, attorneys’ fees, experts’ fees, costs, and civil penalties of $125,000 to $250,000. Though it does not specifically address penalties, Nevada’s law will likely amend its workplace privacy protections for use of a lawful product outside employment, with similar damages to NYC, plus liquidated damages (equal to lost wages and benefits), and as applicable, reinstatement without loss of position, seniority, or benefits.

Not a Total Ban on Pre-Employment Drug Testing

Neither law is a complete ban on pre-employment substance testing — employers may still test for other controlled substances like barbiturates and amphetamines. Note also the jurisdiction-by-jurisdiction at play. To the extent they permit cannabis – whether medical or adult-use – most other jurisdictions are either silent as to pre-employment testing, or implicate prohibitions vis-à-vis privacy laws. There, courts will likely resolve whether pre-employment screening is permitted or prohibited. Notably, courts have historically been pro-employer on this topic, though that could certainly change given the shift in cannabis regulation (and no company wants to be the test case!).

What Employers Must Do

With marijuana regulation in flux, employers must take steps to shore up their employment policies and practices in light of states and local jurisdictions’ growing acceptance of cannabis and employee protections. This includes updating job descriptions to identify safety sensitive positions, drug testing policies and procedures, and training for supervisors and employees. 

Employers must also ensure that their vendors comply with applicable laws and understand the basis/type of test being performed – it is not a guarantee that a vendor will know to appropriately exclude cannabis for pre-employment versus including it for post-accident/reasonable suspicion purposes. Appropriate contracts with risk shifting and backed up by insurance should be considered.

NYC employers may wish to work with regulators to categorically define positions that impact the health and safety of employees and the public. 

Now is the time to have intimate discussions with legal counsel to understand and address these issues.

Up in Smoke: Recreational Marijuana and its Impact on the Illinois Workplace

Contributed by Noah A. Frank, Michael D. Wong, and Jeffrey A. Risch, May 31, 2019

It appears Illinois will become the 11th state to permit recreational cannabis. Once Governor Pritzker signs the legislation, as promised, beginning January 1, 2020, the Cannabis Regulation and Tax Act (“Act”), will allow adults (21+) in Illinois to possess and consume cannabis. While there is a lot “rolled” into the 600 plus page law (pun intended), there are significant employment pitfalls for employers with regard to enforcing drug free workplaces.

Marijuana and a gavel

The Act expressly permits employers to adopt and enforce “reasonable” and nondiscriminatory zero tolerance and drug free workplace policies, including policies on drug testing, smoking, consumption, storage, and use of cannabis in the workplace or while on-call – which is good for employers.

However, the Act’s language indicates that employers are not allowed to take an adverse action against an applicant or employee for marijuana usage outside the workplace. This is bad for employers, as it makes it much more difficult for employers to identify and address use of marijuana by employees. In particular, the Act amends the Illinois Right to Privacy in the Workplace Act (“Right to Privacy Act”), which prohibits employers from restricting employees from using legal products outside of work. Specifically, the Right to Privacy Act is amended to provide that “lawful products” means products that are legal under state law, indicating that recreational and medical marijuana are legal products that must be treated like alcohol and tobacco. Thus, employers may not discriminate against an employee or applicant who lawfully uses cannabis (recreationally or medically) off-premises during nonworking and non-call hours. 

Much like with the Illinois medical marijuana law, the Act changes the emphasis from whether an employee “used” marijuana while employed, to whether the employee was “impaired” or “under the influence” of marijuana while at work or working. As a result, drug testing without any other evidence of the employee being impaired at work or while working will open the door to legal challenges. Specifically, refusing to hire, disciplining, terminating, refusing to return an employee to work or taking an adverse action against an employee or applicant who fails a pre-employment, random, or post-leave return to duty drug test for marijuana will arguably create a claim for the employee against an employer for a violation of Illinois law. For example, an employee who undergoes a urine drug test (which shows use of marijuana within 30-45 days) following a workplace accident may argue that “recreational cannabis was lawfully used outside of work, and the accident/injury was unrelated to the employee’s legal use of cannabis outside of work.” Without more than the drug test result, the employer would be in a vulnerable position to argue against or defend such a claim. However, if the employer completed a post-accident report, which included a reasonable suspicion checklist, in which a trained supervisor observed and recorded symptoms/behaviors of drug use, the employer would be in a much better position to take an adverse action against the employee and dispute any such claim by an employee based on the observations and positive drug test.

With the changes to the Right to Privacy Act, it is important for employers to understand the potential exposure and damages. Under the Right to Privacy Act, aggrieved employees can recover actual damages, costs, attorneys’ fees and fines. As such, employers should make sure their practices and procedures are practical in light of these changes, until and unless the legislature or a court provides further clarity. Of course, the Illinois Department of Labor can provide such clarity through administrative rulemaking. However, that will likely not happen any time soon. 

Interestingly, the Act neither diminishes nor enhances the protections afforded to registered patients under the medical cannabis and opioid pilot programs (while cannabis use is not protected under federal law, the underlying medical condition is likely an ADA and IHRA-covered disability!). Much like under the Illinois medical marijuana law, the Act appears to require employers to take an additional step before disciplining or terminating an employee based on a “good faith belief” that the employee was impaired or under the influence of cannabis while at work or performing the job. After the employer has made a “good faith belief” determination and drug tested the employee, but before disciplining or terminating an employee, the employer must provide the employee with a reasonable opportunity to contest that determination. Once the employee is provided a reasonable opportunity to explain, an employer may then make a final determination regarding its good faith belief that the employee was impaired or under the influence of cannabis while on the job or while working, and what, if any, adverse employment action it will take against the employee without violating the Act. Requiring an employee to go through drug testing is still currently the best practice as a positive drug test will provide additional support for a supervisor’s reasonable suspicion determination.

What Employers Should Do to Diminish Legal Risks and Protect ‎their Workforce?

  1. First, get educated and evaluate all policies and practices that touch on providing and ensuring a safe workplace, including job descriptions. Review the law. Talk to legal counsel on an intimate basis. Assess workplace cannabis-tolerance (in general) and implement policies that can be enforced consistently amongst similarly situated employees. Policies that should be reviewed (and that could be affected) include those addressing health and safety (including accident reporting, smoking, and distracted driving), equal employment opportunity policies, workplace search/privacy policies and drug testing policies. Companies should also review with legal counsel, their drug testing vendor as well as their Medical Review Officer, the drug testing methodology being used to make sure that such is producing results that are useful, accurate and well vetted.
  2. Second, ensure managers and supervisors are well trained and capable of enforcing policies. Remember – exceptions and favoritism lead to discrimination claims.  Conducting training, especially training on reasonable suspicion detection, will be necessary to avoid legal challenges to a supervisor’s reasonable suspicion determination. Creating and/or updating forms for accident reporting (including witness statements), reasonable suspicion checklists, and established protocols for addressing suspected impairment in the workplace, is now more critical than ever.
  3. Third, clearly communicate management’s position and policies to employees, especially where there is a shift in current policy or practice. Educate employees on the effect of lawful and unlawful drug use and the employer’s policies regarding marijuana.
  4. Fourth, engage competent legal counsel to assist you in this process and in addressing difficult situations before they lead to costly and time-consuming litigation.

Finally, stay tuned for further state and national developments in this growing area of law. Be assured that SmithAmundsen’s Labor & Employment Group will be presenting timely webinars and seminars on this subject in the coming weeks and months.

Impact of Recreational Marijuana on Your Business

Contributed by Noah A. Frank, December 5, 2017

While marijuana use remains unlawful under federal law, 30 states and Washington D.C. have legalized some form of medical use.  Eight states and Washington D.C. have legalized recreational marijuana for adults.  More cities, states, and counties have taken steps towards legalizing adult recreational use and increased tax revenues, or to decriminalize possession of small amounts (this might be seen as a tacit legalization without the tax benefits).

Illinois may be next to legalize adult recreational use, with a majority of those polled in the state supporting legalization, and $350M to $750M in annual tax revenue on the line to help plug a $6B+ deficit.  What is clear is that marijuana use may become more prevalent, and the impact on business felt more frequently.

Here is what you need to know now:

  1. Medical cannabis users may still be protected! While use of cannabis is still unlawful under federal law, the steps required to become a registered medical user in most states imply that the user has an underlying medical condition that would be considered a disability, protected under the Americans with Disabilities Act, or similar state or local law.  Therefore, consideration must be given to these equal employment opportunity laws.
  2. Impairment at work is never tolerated. Businesses must be proactive in implementing employment policies regarding substance and alcohol use and impairment in the workplace.  Consistent, nondiscriminatory enforcement of these policies will help protect businesses from equal employment opportunity/disability claims.
  3. Treat cannabis like: heroin, prescription medication, or alcohol – depending on your view and consistent with state law.
    1. Heroin: Remember, cannabis is unlawful under federal law, and employers may implement drug-free policies.
    2. Prescription medication: In states where medical cannabis is lawful, and subject to the above, remember that use of cannabis by someone other than the registered user is the same as abusing someone else’s prescription. This use is not protected by any law.
    3. Alcohol: Where recreational use is in play, subject to the above, many states protect lawful conduct during non-working hours (e.g., using cannabis after work); however, use and/or impairment at work need not be tolerated.

Prepare Now for Recreational Marijuana:

Given current trends, recreational use seems likely to be a question of “when.”  Proactive steps today will put the company in a position to make reasoned decisions, rather than reactionary moves opening the company to claims of discrimination.  This includes:

    • Reviewing the company’s philosophy towards marijuana, prescription medications, and alcohol in the workplace. Ensuring that supervisors have appropriate training on these issues.
    • Updating handbooks and manuals to reflect drug testing, workplace search, disability, and other related policies.
    • Determining safety-sensitive positions, and updating written job descriptions accordingly.
    • Engaging experienced employment counsel to audit policies and practices to ensure compliance and to address policy violations, investigations, and disability accommodation and related matters as they arise.