High Times: How Marijuana Legalization is Impacting Employers in the Southeast

Up until a decade ago, employers generally prohibited marijuana use and excluded from the workplace any employee or applicant who tested positive for marijuana, whether on a pre-employment or post-employment drug test.  Companies did not worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are nearly over, and state marijuana legalization laws are affecting how employers can run their workplaces.

For many states, the legalization of marijuana has followed a predictable timeline. First, these states legalize cannabidiol (CBD) and other low-tetrahydrocannabinol (THC) products. Then, they legalize medical marijuana, sometimes with employment protections for medical marijuana cardholders and sometimes not. Then, if employment protections were absent, they amend existing medical marijuana laws to add employment protections. Finally, they legalize recreational marijuana. 

As this trend has continued, it is challenging for employers to stay ahead of developments and remain compliant with state and federal laws. Employers may have employment-related concerns stemming from the legalization of marijuana and the possibility of employees being in the workplace while under the influence. These concerns extend beyond the nuances of the marijuana laws themselves and include disability discrimination and accommodation issues, drug testing rights and responsibilities, state and federal statutory and regulatory compliance matters, workplace safety questions, workers’ compensation implications, employee privacy protections, and more. 

The differences in laws from state to state make it even more difficult for employers, who must develop policies and procedures that are compliant in each jurisdiction where they have employees and worksites. 

Recent Developments in Georgia

In 2015, the Georgia legislature took a giant step by authorizing the use of medical marijuana oil, even though marijuana still remains an illegal drug under federal law. While proponents of the anticipated medical benefits were very optimistic following Georgia’s legislative action, for the past six years patients really had no legal way to obtain medical marijuana. While various forms of CBD have become ubiquitous throughout Georgia storefronts and gas stations, true medical grade marijuana has remained scarce.

In July 2021, the Georgia Access to Medical Cannabis Commission finally opened meaningful avenues to medical marijuana production and market availability:

• The Commission granted six licenses to producers, two with authorization to operate 100,000 square foot grow houses, and the other four limited to 50,000 square feet.
• The licensees will be able to grow, manufacture and sell medical marijuana containing no more than 5% THC, with the idea that users will receive the pain-relieving benefits without the corresponding high of recreational marijuana use.
• Each license holder will be able to operate five dispensaries around the state.
• Medical users must obtain a formal prescription from a doctor and then apply for a low-THC registration card from the Georgia Department of Public Health, before being allowed to make purchases at the dispensaries.

With these developments, Georgia now joins the majority of other states plus the District of Columbia with functional low-THC versions of medical marijuana programs.

Marijuana Developments in Other Southeast States

Alabama

In May 2021, Alabama Governor Kay Ivey signed AL Senate Bill 46 into law, which legalizes marijuana for medicinal purposes effective January 1, 2022. The law does not contain any employment protections for medical marijuana cardholders.

Florida

In the past three legislative cycles, the Florida legislature has introduced separate bills to amend the existing Florida Compassionate Medical Cannabis Act to include a provision prohibiting public employers from taking adverse employment action against medical marijuana cardholders, and to prohibit private employers from discriminating against medical marijuana cardholders. The Florida legislature has also introduced bills to legalize marijuana for recreational use. To date, these bills remain pending, and none have been approved by the legislature.

Mississippi

In November 2020, Mississippi voters approved a ballot initiative (Initiative Measure 65), which would have legalized medical marijuana. However, in May 2021, the Mississippi Supreme Court ruled that the initiative was unconstitutional—thus overturning the approved measure. Since that development, at the request of Governor Tate Reeves, Mississippi legislators have been working to create a bill to legalize medical marijuana.

North Carolina

In the 2021 legislative cycle, the North Carolina legislature introduced bills to legalize marijuana for medicinal purposes. These bills are still under consideration.

South Carolina

In the 2021 legislative cycle, the South Carolina legislature introduced bills to legalize marijuana for medicinal purposes in South Carolina. The bills did not contain any employment protections for medical marijuana cardholders. While the bills were not ultimately approved, it appears that medical marijuana legalization may soon arrive in South Carolina.

Virginia

The 2021 legislative cycle was busy in Virginia, with the Virginia legislature approving (and Governor Ralph Northam signing into law) bills to legalize recreational marijuana effective January 1, 2024, and amending Virginia’s existing medical cannabis oil law to include employment protections for medical cannabis oil cardholders. The latter went into effect on July 1, 2021.

Key Takeaways

Legal claims related to marijuana use have dramatically increased in the past few years, and employers across all states may be vulnerable to a variety of legal claims. Employers should carefully consider existing employment protections regarding marijuana use and/or medical marijuana cardholder status, and be ready to adapt their policies and procedures as more jurisdictions enact protections for the lawful use of marijuana in various forms.

There are two broad categories of medical marijuana laws: (1) laws with express protections within the language of the statutes for medical marijuana cardholders (i.e., “antidiscrimination” provisions) and (2) laws without express protections for medical marijuana cardholders. Employers should also be aware that irrespective of whether a medical marijuana law contains an antidiscrimination provision, they should be mindful of the potential disability and accommodation issues inherently at play when dealing with medical marijuana cardholders. 

Although recreational marijuana laws have not yet spread through the southeast, employers should be mindful of recent trends around the country, in which a growing number of states have passed recreational marijuana laws containing employment protections (see, e.g., New York, New Jersey, and Connecticut).

In light of the quickly-changing landscape regarding marijuana laws and related issues triggered by state marijuana legalization, Ogletree Deakins recently launched an innovative and company-friendly new product called OD Comply: Marijuana – designed to help employers balance the ever-shifting web of state marijuana laws and proposals, disability discrimination and accommodation obligations, and marijuana-related drug testing laws. Our attorneys have substantial experience counseling employers on an array of employee-relations challenges relating to the legalization of marijuana, with hands-on experience providing business-centric counseling to employers.  The OD Comply Tool provides a continuously-updated mechanism to stay current on the ever-changing rules from state-to-state.