On November 3, 2020, voters in Arizona, Montana, New Jersey and South Dakota approved measures allowing for legalization of recreational marijuana. These 5 states will join 11 others that had previously approved the use of marijuana for recreational purposes, as well as a number of others that had previously legalized medical marijuana use only.  All marijuana use is still illegal under federal law.

 Employers in these 5 new states might be wondering how this legalization is going to impact their employment practices, their risk of losses, their insurance, their businesses.  The attached HR Compliance Bulletin provides a high-level summary of the proposed recreational marijuana laws in each of these 5 states, including any specific impact on employers.  It will still take some time for the legislation to be finalized.

 For now, employers should feel confident that you are within your rights to enforce your drug and alcohol-free workplace employment policies.  But employers may be restricted from discriminating against an individual based solely on a positive drug test or his or her status as an authorized medical marijuana user.  Any employees who are subject to federal regulations (like the Department of Transportation), might need to be handled differently.  For now, employers should also feel confident that their Workers’ Compensation and Employment Practices Liability policies will still respond to claims that might involve marijuana use.  Risk management is critical to avoid claims, however.

 As more information develops on this issue, we will keep you informed.  But please note that Borden Perlman are not attorneys, therefore we highly recommend you discuss the legal aspects of these laws and recommendations with your legal counsel.