Four states — Arizona, Montana, New Jersey and South Dakota — approved recreational use of marijuana while Mississippi and South Dakota approved the use of medical marijuana in ballot measures on Tuesday. These additions make a total of 15 states and the District of Columbia with legalized marijuana.
Legalization of marijuana has raised concerns for U.S. contractors because of issues surrounding workplace safety and questions about drug testing. The Associated General Contractors of America (AGC) said in a statement yesterday that cannabis use negatively impacts attention and decision-making, posing a risk to workers and the general public.
"There's no breathalyzer test for if you smoked pot 10 days ago or 10 minutes ago, and it impacts the brain in ways that are similar to that of being drunk," said Jimmy Christianson, vice president, government relations at AGC in an interview with Construction Dive. "So we're very concerned with these initiatives as our members struggle with how to maintain a safe workplace."
Some of the ballot questions specified that employers would not be prohibited from taking adverse actions based on employee marijuana use, but others did not. Here is a rundown of what each measure includes:
Proposition 207 legalizes possession and use of marijuana for adults ages 21 and older. The initiative does not affect the ability of employers to restrict marijuana use by employees or prospective employees, and it would not require that employers accommodate marijuana use, sale or consumption in a place of employment.
Public Question 1, amends the state's constitution to legalize recreational marijuana use by persons age 21 and older, as well as the cultivation, processing, manufacturing and sale of marijuana. The amendment does not provide information regarding its impact on employers' operations.
Initiative I-190 legalizes possession and use of 1 ounce or less of marijuana or 8 grams or less of marijuana concentrate for people over 21 years of age. However, the initiative would not prohibit employers from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana. It also would not prohibit employers from refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an employee for violating a drug policy or working while intoxicated by marijuana.
Constitutional Amendment A legalizes recreational use for persons 21 years or older. Similar to the initiatives in Arizona and Montana, Amendment A includes provisions stating that it would not require that an employer permit or accommodate marijuana use, nor would it affect an employer's ability to restrict use.
In addition, Initiated Measure 26, affords qualifying medical marijuana patients "all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication," including during drug testing by and any interaction with their employers.
Employers would not be required to allow cannabis ingestion in the workplace, nor would they be required to allow employees to work under the influence of cannabis, but a "registered qualifying patient may not be considered to be under the influence of cannabis solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment," per the proposal's text.
Initiative 65 allows patients with debilitating medical issues to legally obtain marijuana after getting a doctor’s recommendation. It includes 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would be allowed to possess up to 2.5 ounces of marijuana in a 14-day period.
The measure does not require employers to accommodate on-site medical marijuana use, nor does it affect any "existing drug testing laws, regulations, or rules."
Upcoming federal measures
In addition to these statewide initiatives, legislation to decriminalize and legalize marijuana at the federal level is on the horizon, according to the AGC. The U.S. House of Representatives is expected to soon consider the MORE Act, which would remove federal penalties for marijuana use. It was passed by the House Judiciary Committee last November and is expected to be voted on by the House during the current lame duck session.
Employer groups including the AGC have argued against national legalization, saying that there are many occupations and work tasks where marijuana impairment poses significant risks to workers, coworkers and the public. For instance, impaired operation of commercial trucks, cranes and forklifts can lead to accidents, the AGC said in a letter to House of Representatives members this fall.
"We urge that any steps toward legalization include a consideration of the impact on transportation and workplace safety and to ensure that there is an evidence-based standard for detecting marijuana-impairment in driving and other safety sensitive operations," said the letter, which is also signed by many other trade groups.
Portions of this story appeared in Construction Dive's sister publication, HR Dive.