Locke Lord QuickStudy: Rhode Island Employers Face Uncertainty with Marijuana Legislation

April 18, 2017
As the Rhode Island General Assembly actively considers proposed legislation that would legalize marijuana use statewide, employers around the state are bracing for the impact in the workplace while they are already adjusting to the growing use of medical marijuana across the state. The push for legalization could put even greater pressure on employers statewide as they attempt to set and enforce standards of behavior in the workplace, and maintain safety, while also trying to navigate a series of individual rights created by any form of legalized or authorized marijuana use.
For several years, Rhode Island has had a state statutory scheme authorizing the use of medical marijuana. The statute makes clear that employers cannot refuse to employ, or otherwise penalize, any person “solely for his or her status as a [medical marijuana] cardholder.” The statute does provide that employers are not obligated to “accommodate the medical use of marijuana in any workplace.” But, that language leaves it entirely unclear how or even whether an employer is permitted to address situations in which workers appear to be under the influence of medical marijuana while on the job. Other statutes already in place in Rhode Island governing employee drug-testing provide that employers can only subject existing employees to such tests if the employer has “reasonable grounds” to believe that an employee’s job performance has been impaired. Even then, there are limits on how any such testing can be conducted and on what an employer can do in the event of a positive result.

The foregoing landscape has left employers facing great uncertainty in addressing the impact of medical marijuana on their work force, even as anecdotal evidence suggests that the use of medical cannabis statewide is growing and the standards for securing cardholder status are loosening. There are now reportedly as many of 17,000 authorized medical marijuana cardholders in Rhode Island, meaning that the penetration into the statewide work force is undeniable. There is already one “test case” in Rhode Island Superior Court in which a job applicant claims that she was denied a job solely because of her cardholder status. The employer has argued that she was denied the job because her admitted marijuana use made it clear that she could not pass the mandatory (and permissible) drug-screening test associated with her offer. That court recently heard arguments on a summary judgment motion by the employer. Business groups around the state are watching closely for the impact of a ruling.

But that case did not involve an employee working under the influence of marijuana, which remains the greatest unknown for employers. The principal bill on legalized marijuana now before the General Assembly does provide that employers are not required to accommodate employees who are “under the influence of cannabis” in the workplace. That is a significant difference from the existing medical marijuana legislation, which lacks such language. But the proposed legalization bill otherwise provides no guidance on how such “influence” would be measured or enforced by employers. It also does not make clear how that language would interact with the strict limitations on employee drug-testing already in place elsewhere in Rhode Island law.
Current testing technology for the presence of marijuana in an individual’s system has limits and, unlike with alcohol, cannot clearly identify times at which someone is impaired. Once someone is a regular marijuana user – either recreationally or for authorized medical purposes – there is a baseline level of the substance present in that person’s system and it becomes very difficult to judge whether that person is “under the influence” at any given time while on the job. This leaves employers to rely on other subjective factors like personal observations of appearance and behavior, smells, secondhand reports from other employees, and the like. Especially when workplace safety is at issue, those are inherently unreliable indicators.
Business and industry groups around the state are working to defeat any passage of legalized marijuana in Rhode Island this year, but they are facing opposition from an array of libertarian groups, marijuana advocates, and groups that are attracted by the prospect of associated state revenues. While there are current indications that the legalization effort could be forestalled, at least temporarily, by the creation of a study committee, the battle continues and there are substantial resources being invested by pro-marijuana advocacy groups. In the meantime, employers are already concerned about the implementation of legalized marijuana in nearby Massachusetts.

Employers attempting to control and regulate the use and influence of marijuana in the workplace need to make clear that prohibitions in their policies are not limited to “illegal” drug use. Even when employees are permitted to use regulated substances – perhaps even to include prescribed painkillers or medications – they are not permitted to report to work under the influence of any such substances. Employers need to communicate clearly to their employees that workplace safety is paramount and that employees are expected to report for work in a condition that permits them to be fully focused and ready to devote their full attention and best efforts to their job. Employers need to monitor workers closely for any evidence that they are working in a condition that impairs their judgment or capabilities, or that puts others at risk.

But, in light of great uncertainty about employee/employer rights in the current medical marijuana bill, and the prospect of more widespread legalization in Rhode Island and adjoining states, employers will still be left with great uncertainty about how, whether and when they can assess the influence of marijuana on their employees and what recourse they have for taking remedial action. We will continue to monitor new developments in this area, and in the evolution of the law, and will be ready to assist our clients as events unfold.