Rhode Island employers may be justifiably confused as to whether and how to implement policies concerning their employees’ use of marijuana. Despite its continued federal classification as a Schedule 1 drug, marijuana has been increasingly legalized by several states. Dozens of states, including Rhode Island, now allow for the sale and/or use of some form of medical marijuana. More recently, some states have begun to legalize the drug’s recreational use. Nine states have passed laws permitting some form of recreational marijuana, including Rhode Island’s New England neighbors of Massachusetts, Vermont, and Maine. Recent bills introduced in the Rhode Island legislature suggest that Rhode Island is also moving towards legalizing recreational use of marijuana.
Although Rhode Island has not yet legalized recreational marijuana, several components of state government have taken a more permissive view towards the drug. In a decision that may have broad implications, the Rhode Island Superior Court held that The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act prohibited an employer from refusing to hire a potential employee solely because that potential employee held a medical marijuana card. Thereafter, Governor Raimondo signed legislation permitting people to petition courts to expunge criminal records stemming from crimes that have since been decriminalized. A press release from the Rhode Island General Assembly announcing the law cited the state’s decriminalization of small possessions of marijuana as an impetus for the change. Additionally, the Rhode Island Department of Health has approved a petition that permits doctors to prescribe medical marijuana to children with autism.
Bills have also been introduced in both the Rhode Island House and Senate regarding recreational use of marijuana. Senate Bill 2895, entitled “An Act Relating to Food and Drugs – Adult Use of Cannabis Act” would replace prohibition of recreational use of marijuana with regulation and taxation if it is enacted. In the House, Bill 7883 would submit a non-binding referendum to the state’s electorate regarding the legalization of possession and use of marijuana by persons 21 and older. Although the Senate Bill has been adjourned indefinitely and the House Bill has been held for further study, their introduction suggests a changing tide with respect to Rhode Island’s official views on marijuana. Recreational legalization did not move forward this year despite the Governor’s initial proposal, but the state’s 2020 budget includes funding for tripling the number of Rhode Island compassion centers. Furthermore, Rhode Island Attorney General Peter Neronha recently joined 20 of his fellow state attorneys general and sent a letter to Congress that supports a bill that would prevent the federal government from interfering with state marijuana programs.
Employers should respond to this shifting landscape by revisiting, or considering for the first time, their recreational marijuana policies to minimize their legal risks in the event that Rhode Island ultimately legalizes recreational marijuana. Depending upon the type of business, is recreational marijuana and drug screening an activity that the employer wants to undertake? If so, what test results will result in what types of consequences for employees and potential employees? If an employer conducts business in multiple states with different marijuana regulatory regimes, should they treat employees in those states that permit recreational use differently? Does an employer want to maintain a strict zero-tolerance policy in accordance with federal laws? How should off-duty consumption effect employment status? How does an employer treat recreational marijuana users vis-à-vis medical marijuana cardholders? These are just some of the questions that employers need to address now, and will need to revisit as Rhode Island’s marijuana laws continue to evolve. The experienced attorneys at Adler Pollock & Sheehan can help.