Locke Lord QuickStudy: Legalized Marijuana in Rhode Island ‎Presents New Challenges ‎for Employers

Locke Lord LLP
May 25, 2022
On Tuesday, May 24, the Rhode Island General Assembly passed legislation legalizing the ‎recreational use of marijuana. The bill will become law upon the signature of Governor Dan McKee, ‎which is expected. Recreational cannabis could be available for public sale in Rhode Island as soon ‎as late 2022. For Rhode Island employers, this new legislation creates some immediate challenges, ‎and also provides some key protections. Employers will need to move quickly to implement policies ‎and procedures, and to educate their workforce.‎

First and foremost, the law makes clear that employers do not have to tolerate the use or possession ‎of marijuana in the workplace, or anyone working under the influence of marijuana. Those aspects of ‎the statute apply with equal force to employees working remotely, outside of their employer’s place of ‎business. Employers are free to impose discipline, including termination, on employees who violate ‎workplace policies on marijuana use or who work while under the influence of cannabis.‎

Employers may not take any disciplinary action against employees solely for their private, lawful use ‎of cannabis outside the workplace, but there are two important exceptions to this general rule. First, if ‎the employer is a federal contractor and is required by the terms of any applicable federal contract or ‎regulation to prohibit the use of marijuana by its workforce, the employer can impose necessary ‎limitations on its employees if doing so is necessary to protect the benefit of a federal contract or ‎license. Employers working pursuant to federal contracts or licenses will need to review all such ‎requirements and implement such policies with their employees promptly.‎

Second, if an employee’s job involves what the statute calls “work that is hazardous, dangerous or ‎essential to public welfare and safety,” then the employer can implement policies that prohibit the use ‎or consumption of cannabis by an employee for twenty-four (24) hours prior to a work shift or ‎assignment. The statute itemizes certain types of work included in this provision and it includes the ‎operators of aircraft, commercial vehicles, school buses and public transportation, as well as first ‎responders and emergency and medical personnel. It also includes any employees who operate ‎heavy equipment or machinery, meaning that manufacturing and construction employers can ‎impose and enforce policies prohibiting certain employees from using cannabis products for 24 ‎hours prior to their work, even when that involves otherwise private conduct. Detecting violations of ‎any such policy may be difficult, but the mere existence of the policy, and the threat of termination for ‎any violation, could provide strong disincentives for such employees.‎

Of course, proving that an employee is under the influence of marijuana at work continues to present ‎challenges. There are still no reliable testing protocols that can effectively test for episodic impairment ‎in the same way that breathalyzers and other tests can detect the influence of alcohol. So, employers ‎will often be left to rely on subjective factors such as appearance, smell, behavior and performance. ‎Employers should also make clear to all workers in critical safety situations that if they do not feel ‎safe working in proximity to other employees who they believe are under the influence of marijuana ‎in the workplace, they should express those concerns.‎

As this new legislation goes into effect, employers should be reviewing and updating their policies, ‎and should engage in educational efforts in the workforce to emphasize their expectations, their ‎employees’ rights and obligations, and the importance of reporting for work in a condition that is fit for ‎duty. Employers with workers in safety-sensitive positions, or with workplace areas where safety is ‎critical, should continue to emphasize the importance of workplace safety for all, and should ‎communicate a zero-tolerance policy on any employee working under the influence in a way that ‎would jeopardize the safety of others, or of the workplace.‎

The growing prevalence of generally legalized marijuana in society presents unique challenges in ‎workplace environments, and employers have to be ready to implement and enforce the necessary ‎policies and procedures, and need to communicate their expectations and rules to their employees ‎clearly and frequently. Employers should also revisit any existing policies and procedures relating to ‎authorized medical marijuana cardholders. ‎