Pub. 1 2018-2019 |Issue 3

A number of our clients have asked us what effect, if any, Utah’s new marijuana law will have on their drug-testing policies, and relatedly, whether they must accommodate use of medical marijuana by their employees. As discussed below, the answer is currently unclear; however, it appears unlikely that the new law will have a significant legal effect on private employers. As a reminder, in November, Utah voters passed Proposition 2, legalizing medical marijuana. Weeks later, the Utah Legislature passed a compromise bill, the Utah Medical Cannabis Act (the “Act”), which revised and superseded Proposition 2. The Act was signed into law on December 3, 2018. Initial versions of the Act prohibited discrimination in employment based solely on an individual’s status as a medical cannabis cardholder. Specifically, the proposed provision stated: An employer may not refuse to hire, suspend, terminate, take an adverse employment action against, or otherwise penalize an individual solely for the individual’s status as a medical cannabis cardholder, unless failing to do so would cause the employer to lose a monetary or licensing-related benefit under federal law. See Draft Utah Medical Cannabis Act (2019FL-4444/020), dated October 4, 2018, at lines 1442-45. Importantly, the version of the Act that was signed into law only prohibits discrimination with regard to government employment (Utah Code Ann. s 26-61a-111). It states that the state or any political subdivision must treat “an employee’s [legal] use of medical cannabis... in the same way the state or political subdivision treats employee use of opioids and opiates” except where doing so “would jeopardize federal funding for the employee’s position.” (Utah Code Ann. s 26- 61a-111(2)(a), (b)).) Act on Private Employers Some states outside of Utah that recently adopted marijuana laws have provided employers with much more certainty by including specific carve-outs for employer drug testing and discipline. For example, both Vermont and Michigan passed ballot initiatives legalizing the recreational use of marijuana by persons 21 years of age or older. Michigan’s new law specifically states that employers need not “permit or accommodate [use of medical marijuana] in the workplace or on the employer’s property,” and may discipline employees for violating “workplace drug policy or for working while under the influence” of marijuana (Mich. Comp. Laws Ann. § 333.27954(3)). Vermont’s law similarly provides that employers are not required to “accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace” and may discharge “an employee for violating a policy that restricts or prohibits the use of marijuana by employees.” (Vt. Stat. Ann. tit. 18, § 4230). Unfortunately, Utah’s new law is silent with respect to private employers and drug testing. This raises some concern because individuals eligible for a medical cannabis card are also likely to be protected by the Americans with Disabilities Act and the Utah Antidiscrimination Act. See Utah Code Ann. § 26-61a- 104(2)(a)-(p) (listing qualifying conditions for medical cannabis card). Although there are open questions Medical Can 14