By Julie A. Werner-Simon and Elizabeth A. Wilson
In November 2022, Maryland Voted to Legalize Adult Recreational Marijuana – What does this Mean for Maryland Companies that Drug Test in Hiring and Firing and for Employees who use the Controlled Substance (Medically and/or Recreationally)?
Authors’ Note: The terms “marijuana” and “cannabis” are used interchangeably and are synonymous for the purposes of this non-scientific article referring to substances (dry weight or living plant form) in excess of 0.3 percent THC (tetrahydrocannabinol).
I. Maryland is Known as “The Free State” and in 2023 — This Takes on a New Meaning
One of Maryland’s state monikers is the “Free State.” Thought to be a reference to Maryland’s 1864 state constitution that abolished slavery, more recent scholarship links the origin of the motto to the time of prohibition. Maryland chafed at federal constitutional directives and refused to ban the sale of alcohol when the 18th Amendment banned the sale, manufacture and transportation of “intoxicating liquors.”’
A. Maryland is the 21st Adult Recreational State
In November 2022, Maryland again lived up to its “free” reputation and became the 21st state to legalize recreational marijuana for adults. Maryland joins 20 other states that have legalized adult recreational use after previously legalizing medical marijuana. Maryland (as of July 1, 2023) will “roll out” recreational sales and join Maine, Vermont, Rhode Island, Massachusetts, Connecticut, New Jersey, New York, Virginia, Michigan, Illinois, Montana, Colorado, New Mexico, Arizona, Nevada, California, Oregon, Washington, Arkansas, and Missouri, which all have coexisting medical and recreational programs in their states.
As of January 2023, there are only 3 states (and one U.S. territory, American Samoa) where legalization of marijuana is completely illegal under the laws of the state or territory. This leaves 47 states and four inhabited U.S. territories with varying degrees of marijuana use.
This equates to about 99% of the U.S. population of some 336 million inhabitants having some degree of state or territorial law permitting marijuana usage.
B. But Marijuana Remains Illegal Under Federal Law
However, despite the ever-increasing number of states and U.S. territories jumping on the legalization bandwagon, cannabis remains illegal under federal law. President Richard Nixon signed into law Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. In addition to the Controlled Substances Act (“CSA”), the federal Drug-Free Workplace Act of 1988 (the “Act”) mandates that the workplace must be free of drugs. This requires certain federal contractors and most federal grantees to provide a drug-free workplace in order to receive a contract or grant from the federal government. Although neither the Act nor its regulations authorize drug testing, in order to meet the requirement of certifying a drug-free workplace, employers elect to drug test unless prohibited by state law.
The pastiche of state legalization laws and the impact of federal illegality can create an employer-employee nightmare as to what practices to adopt for those who use marijuana medically or recreationally. Where there are no governmental directives on the parameters of permissible state legal marijuana usage vis-à-vis the workplace, workers and employers have sought determinations from the courts.
Some state legislatures have been proactive and have set up guardrails to protect workers. But legislators in other states have stood on the employment sidelines. Despite the adoption of progressive degrees of legalization, they have done little to provide clear guidance to employers and employees. This inaction results in erratic business practices vis-à-vis drug use and testing, and costly litigation. Maryland is at risk for such chaos; but it can still chart a different course as it designs implementing legislation for the brand-new constitutional amendment legalizing adult use marijuana.
II. Maryland’s Marijuana Legalization History
In 2013, Maryland started to pave a way to “degrees” of permissive use of marijuana in the state. In just under a decade, the state transformed from being a state which permits only patients with state-issued medical marijuana cards to purchase and possess medical marijuana into a state where, by July 2023, any adult 21 years old or older can buy and use marijuana for recreation. No longer will Marylanders—as a prerequisite to usage—need to get a medical provider’s approval, register with the commission, pay for a marijuana card and prove that they suffer from any of the qualifying conditions.
Here is a brief history of those efforts:
A. Maryland’s Steps Toward and the Successful Implementation of Medical Marijuana Legalization
In 2013, the Maryland General Assembly established the Maryland Medical Cannabis Commission (“MMCC”) to “develop policies, procedures, guidelines, and regulations to implement programs to make medical cannabis available to qualifying patients in a safe and effective manner.” A year later, in 2014, then-governor Martin O’Malley signed HB 881 into law and Maryland had legalized medical marijuana. However, nothing in Maryland’s 2014 medical legalization legislation prevented employers from penalizing employees for medical use.
In fact, nothing in Maryland law prevents an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).
Image (above): Maryland Medical Cannabis Commission Patient FAQ (Frequently Asked Questions) on drug testing (2023).
This is even though, theoretically, under Maryland law, just having a medical marijuana card (“being a qualifying patient”) must not result in the denial of any right or privilege of a patient complying with Maryland law. Maryland medical marijuana card holders can be drug tested at work and fired because of a marijuana-positive drug test.
On the same day in April 2014, Maryland’s governor also signed off on decriminalization legislation. There is no universal definition of decriminalization of marijuana, so states have taken different approaches. Maryland’s decriminalization approach left the criminal statutes “on the books,” while reducing punishment for the offenses. Adults in possession of less than 10 grams of marijuana would be subject to modest civil rather than criminal penalties. The state took one step back when then-newly elected Governor Larry Hogan vetoed legislation that decriminalized smoking marijuana in public places and owning paraphernalia. But the General Assembly overrode the veto, and under current law, smoking marijuana is a civil rather than criminal offense as is possession and use of paraphernalia. Still, those in the business community have been left flying blind on setting marijuana policies for their employees.
Because decriminalization is not legalization, and Maryland’s medical program does not prevent termination for usage (even by a patient), Maryland employers have had to adapt on their own. This is even though Maryland, as a medically legal state, has already cultivated a robust market for marijuana, with usage levels placing it in the top 15-20% of states with degrees of legalization.
Amazon, with some 15 delivery stations in Maryland in addition to nine full-size fulfillment and sorting centers, is one of the top ten employers in Maryland. Though known for requiring drug testing, the company recently changed its policies to attract more workers. In January 2022, Amazon announced that it would exclude marijuana from its comprehensive drug testing program and reinstate employment eligibility for previously-disciplined employees during earlier pre-hiring and random drug testing. Amazon adduced compelling reasons for this policy change that Maryland lawmakers should heed:
First, we recognized that an increasing number of states are moving to some level of cannabis legalization—making it difficult to implement an equitable, consistent, and national pre-employment marijuana testing program. Second, publicly available national data indicates that pre-employment marijuana testing disproportionately impacts people of color and acts as a barrier to employment. And third, Amazon’s pace of growth means that we are always looking to hire great new team members, and we’ve found that eliminating pre-employment testing for cannabis allows us to expand our applicant pool.
C. Adult Recreational Wins in Maryland in November 2022; Adult Recreational to Begin July 1, 2023
Maryland legalized adult recreational marijuana using the state’s constitutional amendment ballot process. Maryland voters, in the November 2022 midterms, approved a constitutional amendment by a margin of 67.2% to 32.8%, of those voting. As a result, as of July 1, 2023, individuals 21 or older may legally use and possess and consume up to 1.5 ounces of cannabis flower, 12 grams of concentrated cannabis, or a total amount of cannabis products that does not exceed 750 mg THC. This amount is known in Maryland as the “personal use amount.”
While the initial legislation accompanying the constitutional amendment provided only broad-brush parameters for the adult market, the rules of implementation are being crafted now by the General Assembly. On February 3, 2023, an omnibus bill setting out implementing legislation for the constitutional amendment legalizing marijuana was introduced in both Houses of the General Assembly as HB 556 and SB 516. A hearing on HB 556 was held on February 17, 2023. The two bills will now go to committees in the Assembly.
Legislators are proposing to dissolve the existing current Maryland Medical Cannabis Commission (“MMMC”) that currently oversees the state’s medical program. In its stead will be a new Cannabis Regulation and Enforcement Division located in the Office of the Executive Director of the Alcohol, Tobacco, and Cannabis (“ATC”) Commission. By June 30, 2023, the current MMCC will be absorbed by the new commission, the ATC, that will monitor both adult recreational and medical programs. This is an indication that going forward, the state will treat cannabis similarly to alcohol; it will be a highly regulated industry.
Despite Marylanders assent to adult recreational legalization and the impending implementation of the constitutional amendment on July 1, 2023, early indications are that, apart from regulations and practices for those in or seeking to become part of the cannabis business sector, the impact of marijuana usage on employers and employees and in personnel matters itself is not a high priority.
While Subtitle 13 of the omnibus bill provides that “neither the States nor any of its political subdivisions may deny a benefit, an entitlement, a driver’s license, a professional license, housing assistance, social services, or other benefits,” [to a legal marijuana user] it also makes clear that:
Nothing in this section may be construed to prevent or prohibit any employer from denying employment or a contract to an individual or disciplining an employee or a contractor for testing positive for the presence of cannabinoids or cannabinoid metabolites in the urine, blood, saliva, breath, hair, or other tissue or fluid of the employee’s or contractor’s body, if the test was conducted in accordance with the employer’s established drug testing policy.
Before the adult recreational implementation is reconciled and becomes law, Maryland lawmakers, in session now until April 10, 2023, should establish policies that make it easier for employers and employees in the state to navigate the marijuana usage issue. This was not done when Maryland legalized medical marijuana or during any of the phases of decriminalization.
It can be done as Maryland implements recreational marijuana legalization. In order to maintain a healthy and profitable business environment, Maryland businesses need to attract nationwide talent. And with (per a 2021 Gallup poll) almost half adult Americans having at least “tried” marijuana, Maryland businesses need to be proactive with their marijuana policies so that they do not drive away prospective employees who legally indulge. Lawmakers should assist with this end.
With Maryland’s recreational implementation policies being formulated as this article goes to press, now is the time for Maryland to review and mirror well-considered regulations already in place in other adult recreational states and localities in other parts of the country.
III. Options for Maryland Lawmakers in Adopting Specific Marijuana Workplace Policies
According to NORML, the National Organization for the Reform of Marijuana laws, “Seven states, [including] Nevada, New York, New Jersey, Connecticut, Montana, Rhode Island, California and Missouri, have passed laws protecting employment rights of recreational marijuana . . with Nevada’s only protecting pre-employment drug testing. NORML also reports that cities, including Philadelphia, have recently enacted ordinances protecting employment rights of marijuana users, either for city employees or for all workers in their cities – – with all anti-marijuana discrimination laws having “some exemptions for federally mandated drug testing and sometimes for safety-sensitive positions.”
Some of the 21 recreational states provide job protections for workers, like California which in September 2022 passed a law prohibiting employers from discriminating against workers who use marijuana off-site and off-duty.
Other states with just medical legalization like Pennsylvania protect those workers with state- issued medical marijuana cards from businesses taking adverse actions against the employee so long as the employee is registered as a patient with the state and their jobs are not classified as hazardous or dangerous.
But state permissive worker protection laws related to marijuana usage do not inoculate an employer from violations of federal law. Marijuana, still federally illegal, places employers and employees on a tightrope. However, having a state-compliant personnel policy can serve to reduce issues that arise from federal illegality.
Maryland, which already has a robust medical marijuana program, should immediately protect Maryland’s more than 139,000 medical marijuana users by adopting regulations/legislation that make clear what an employer and an employee can do regarding state-legal marijuana usage.
Maryland’s lawmakers can look to other states that have addressed employment issues up front, in the legalization legislation or ballot initiative or through the passage of employment “safe harbor” marijuana usage laws.
A. Pre-Hiring Drug Testing
Currently, Maryland’s law allows employers to conduct drug tests for the use of alcohol and controlled substances. Maryland’s employee drug testing laws specifically state that employers do not need to accommodate use in the workplace, and employers can discipline or terminate an employee who tests positive for off-duty marijuana use—even if it is being used for a medical condition.
Maryland should take a page from the city of Philadelphia which passed a law (effective last year in 2022) prohibiting pre-employment drug tests for marijuana as a condition of employment. Philadelphia, the most populous city in Pennsylvania, a medical marijuana state, has crafted an anti-marijuana testing ordinance with specific exceptions for higher-risk occupations. “Higher risk or sensitive occupations” can be synonymous with “hazardous, dangerous or essential to public welfare and safety.”
The need for Maryland to adopt this bar to most pre-employment drug testing for low-risk occupations is great. This is because a positive drug test for the presence of marijuana (metabolites) in a person’s body does not prove impairment or even a date certain on when the user has ingested the substance. Cannabis has a long half-life and most currently used tests cannot differentiate between a person who is currently “under the influence” and a person who used cannabis a month earlier.
Maryland should adopt legislation that makes it unlawful for any (non-federal) employer who is not in a hazardous or sensitive industry, to fail or refuse to hire a prospective employee because the prospective employee submitted to a drug screening test and the results indicate the presence of marijuana. Thereafter, laws can be updated, if necessary, as new drug tests are developed and become more widely available that will allow more accurate results necessary for on-the-job testing.
B. Post-Hiring Drug Testing and Termination
Given that Maryland has been a medically legal marijuana state and will, by July 2023, have an adult recreational program, post-hiring drug testing for marijuana should be circumscribed. Post-hiring testing should be reserved for employees who appear “under the influence, whose usage is negatively impacting an employer’s operations, those in hazardous or sensitive jobs, and of course, because of federal illegality, exempting any federal employee or contractor who must comply with the Federal Drug Free Workplace Act of 1988.”
Currently, the Maryland Code allows for immediate termination of public employees for “illegal sale, use, or possession of drugs on the job.” Md. Code Ann., State Pers. & Pens. § 11-105 (3). State employers have terminated employees for violations of 11-105(3) based on a positive marijuana test. However, Maryland courts have interpreted 11-105 in a more forgiving way. In Bond v. Dep’t Of Pub. Safety And Corr. Servs., 161 Md. App. 112, 125–26 (2005), the Court of Special Appeals reversed an administrative law judge decision affirming the termination of a public employee based on a positive marijuana test, holding that it was “unreasonable” to conclude from a positive test alone that the employee “smoked, possessed, or was under the influence of marijuana at work” in the absence of any other evidence. Additionally, Maryland’s medical marijuana law authorizes the imposition of “civil, criminal or other penalties” for a state-legal marijuana user – if the usage “constitutes negligence” in the operation of the business.
Maryland should adopt New York’s approach. With the advent of adult recreational use, New York amended its labor code to prohibit discrimination against employees who engage in the “legal use of consumable products, including cannabis in accordance with state law.” Maryland should modify current laws to make clear that marijuana, as of July 2023, will be considered a “legally consumable product.” Authorized employer marijuana discrimination would be limited to hazardous, sensitive, or high-risk businesses that ban usage, or where employees have violated the state’s marijuana legalization laws, and in those instances where employers suspect that workers are impaired at the workplace.
2. On-Site Usage
There is no state or territory that permits workers to use medical marijuana in the workplace. To do so would be violative not just of the federal Controlled Substances Act, but also the federal Drug-Free Workplace Act of 1988.
However, this could change in the not-too-distant future. President Joe Biden, in December 2022 signed into law the “Medical Marijuana and Cannabidiol Research Expansion Act, H.R. 8454,” (the Cannabis Research Bill) which will ramp up federally funded research into marijuana as medical treatment. President Biden also, in October 2022, directed to the Secretary of Health and Human Services and the Attorney General to “expeditiously” review how marijuana is scheduled under federal law (part of the president’s Pardon Proclamation for federal offenders convicted of marijuana possession) and will necessarily involve the medical marijuana efficacy studies required for any re- or de-scheduling under the CSA. Medical marijuana is steps closer to becoming mainstream medication though no state yet permits marijuana to be taken at work like other medications that individuals with chronic conditions may bring to work to take or ingest on site (think asthma and bronchial inhalers). The normalization of marijuana as medication will come.
California has opened the (schoolhouse) door a crack. In 2019, California’s governor signed into law a bill permitting school children, under a medical provider’s care, who take medical marijuana to treat qualifying medical maladies and who need the medication during the school day, to have the medicine be administered on campus by the school nurse, parent or the student’s guardian.
Maryland in 2020 passed a similar bill with one exception being that the school nurse need not be the person administering the medication. This practice by Maryland in the usage of medical marijuana at schools could be adapted to the workplace as marijuana medication becomes mainstream.
C. Reasonable Accommodations
Maryland’s employers are not required to accommodate medical marijuana users in the workplace. Currently, Maryland’s approach tracks with the federal Americans with Disabilities Act. Medical use of marijuana (illegal under federal law) cannot be considered a reasonable accommodation.
This is one of many of the collateral consequences of federal illegality. These consequences include the fact that patients who use medical marijuana are not permitted to deduct medical marijuana on their federal tax returns or have medical marijuana covered by health insurance or worker compensation programs.
Maryland lawmakers tried to remedy some of this in HB 628 introduced in October 2022 but failed to win passage. This bill would have prohibited an employer from discriminating against an individual who is legally authorized to use medical cannabis or tests positive for the substance (1) if the patient is legally authorized to use medical cannabis, and (2) expressly authorizes Maryland’s Workers’ Compensation Commission (“WCC”) to require an employer or its insurer to provide medical cannabis to an injured employee receiving workers’ compensation benefits as part of the injured employee’s medical treatment.
Now that Maryland will be fully legal (medical and adult) it should take a page from states that are not waiting for federal legality to adjust its laws involving reasonable patient accommodations. Maryland should allow medical marijuana patients to argue that their illnesses are covered by state law and that they are entitled to “reasonable accommodations” to include treatment with medical marijuana. At a minimum, Maryland lawmakers should pass HB 628. This would change the law in Maryland to prevent discrimination of a marijuana patient and enable them to secure treatment needed under worker compensation.
IV. Businesses: Know and Follow State Guidelines and in the Absence of Clear Guidance from Lawmakers, Make your Own Marijuana Personnel Policies, and Memorialize Them in Written Manuals, and Implement Consistently
Under federal law (the Controlled Substances Act) marijuana is still illegal. However, some 47 states now have legalized some degree of marijuana.
What should employers do while the law is in a state of flux? The answer: Adopt policies in written employee personnel manuals and implement these policies consistently. The policies should be clear and precise especially when delineating different standards for different employee positions such as those that carry a significant risk of harm to the employee or others (e.g. working from heights or with electricity). Other than for positions of high safety risk factors, the policies should be centered around an employee’s ability to work and overall conduct, not on unnecessary testing. Employee policies also need to comport with state law.
The Society for Human Resource Management (“SHRM”) on its website among other things, urges businesses to:
Know the various state laws before setting [marijuana] policies and testing rules and to understand that the company practices might need to change depending on location.
Attorney Judith Cassel of Hawke McKeon & Siscak, LLP, an expert in corporate compliance, and who has counseled a myriad of businesses (to include Fortune 500 as well as academic institutions) advises all businesses to have clearly written, personnel manuals which contain the company’s policy on drug testing, hiring and firing, and the confines of permissible inquiry about drug use.
Debra Doby, a partner at Vaughan Baio & Partners, in New York, named a “Rising Star” in New York Metro Super Lawyers in 2016-2020, is an employment and insurance specialist who counsels that once companies have written personnel manuals, they must apply the rules (to include random drug testing) to all the employees from the C suite to the mailroom. Failure to equally enforce company policies for hiring and firing, and/or having policies in contravention of state law, can result in civil exposure.
If there are gaps in a company’s cannabis policies, disparity in a company’s implementation of cannabis policies, or if a company’s employment policies are in contravention of applicable state law, businesses could face huge exposure. This happened last year, in 2022, to Walmart and Sam’s Club. The class action complaint filed in New Jersey federal court charged the superstores with violating New Jersey’s Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act which prohibits employers from rejecting a candidate for testing positive for marijuana use. Having and implementing a plan to follow state regulations would have likely reduced the threat of litigation.
V. Maryland Has a Chance to Make Things Right for Businesses and Their Employees
The details for the July 2023 implementation of Maryland’s new marijuana laws are being crafted now in the Maryland General Assembly. Lawmakers should understand that having employer-employee rules on drug testing and hiring and firing can help the bottom line for Maryland’s employers. Having policies as proposed above and as implemented in other states can serve as guardrails in the workplace.
To date, during the open discussions of the legislators, none have proposed detailed regulations to guide employers and employees on what to do about marijuana use.
On February 17, 2023, at a public hearing concerning the implementation of adult recreational use (HB 556), over 80 members of the public gave testimony. Given two minutes, noted with an audible timer, the public raised subjects to include marijuana taxation and social equity issues. It was representatives from the construction industry (notably, an industry often deemed hazardous) who raised the subject of drug testing in the employment setting. Other than being informed by lawmakers that nothing in the law would prevent hazardous industries from testing – – no other guidance to employers appeared to be in the offing.
In fact, at the February 17th hearing, one of the implementation bill’s co-sponsors, C.T. Wilson, of the 28th District, and Chair of the Economic Matters committee, acknowledged Maryland is currently facing a labor shortage. Yet his view was that employers should decide the drug testing balance for themselves. Delegate Wilson explained that Maryland lawmakers do not wish to make “marijuana smokers a protected class of people.”
If other lawmakers are similarly inclined, Maryland’s marijuana law will remain antiquated. The state will stand on the sidelines as other states adopt best practices in marijuana usage and employment. This means that Maryland’s businesses are their own. They should update personnel manuals to reflect (in non-safety related industries) permissive use, limited drug testing, and reasonable accommodations for those who qualify. Businesses should also ensure that their articulated policies are uniformly applied throughout the business.
Taking these steps now (with or without the lawmakers) months before full-fledged adult recreation comes to fruition on July 1, 2023, will help Maryland businesses remain competitive and attract and retain workers.
With clear policies regarding marijuana usage in place, management-employee confusion will be reduced. Fewer gray areas, clearer lines of permissible behavior, and equal enforcement of company usage policies, company-wide, will surely reduce litigation exposure for Maryland’s businesses. Implementation of well-considered marijuana usage policies now could prevent a lot of headaches later.
Julie A. Werner-Simon, is a former federal prosecutor, constitutional law fellow, and currently teaches Marijuana Cannabis Law at University of Southern California Gould School of Law & Drexel University’s Kline School of Law. She also serves as a legal analyst in the Emerging Industries series at LeBow School of Business at Drexel University. Werner-Simon recently received U.S. Copyright Office protection for her companies’ (Legal Buds® Persuade2Win®) 2022 feature-length film “Marijuana Cannabis Law: History, the Constitution & Degrees of Legalization.”
Elizabeth A. Wilson is Counsel at Gilbert Employment Law and formerly practiced law with WilmerHale LLC and Lewis and Baach (formerly, Baach Robinson and Lewis). She has also taught international law and human rights at the School of Diplomacy, Seton Hall University, Rutgers Law School, and Columbia University. Her monograph, People Power and International Human Rights: Creating a Legal Framework was published by the International Center on Nonviolent Conflict in 2017.