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Jennifer L. Mora
On Could 25, 2022, Rhode Island Governor Daniel McKee signed “The Rhode Island Cannabis Act,” which grants adults aged 21 and older the precise to own and develop sure quantities of hashish for leisure use. Retail gross sales are anticipated to start as early as December 1, 2022. The brand new legislation, which is efficient instantly, joins the rising variety of states proscribing the flexibility of employers to conduct pre-employment hashish testing and act based mostly on their staff’ lawful off-duty use, most lately in District of Columbia and New York.
The Hashish Act permits employers to take care of and implement a drug-free office coverage that prohibits staff from utilizing or possessing hashish within the office and from being underneath the affect of hashish whereas they’re performing work, together with distant work. The legislation additionally doesn’t require employers to accommodate the medical use of hashish in any office. After all, employers nonetheless should be conscious of the employment protections included within the state’s separate medical marijuana legislation.
Employers can not, nevertheless, terminate or take any disciplinary motion in opposition to an worker based mostly solely on the worker’s personal, lawful use of hashish outdoors of the office, except the employer can show the worker has labored, or is working, underneath the affect of hashish. As a optimistic hashish take a look at outcome doesn’t show impairment, an employer should present different indicia of impairment if it takes motion in opposition to an worker it believes to be underneath the affect or impaired whereas working.
These protections don’t apply if:
- The employer is a federal contractor or in any other case topic to federal legislation or rules such that failure to take such motion would trigger the employer to lose a financial or licensing-related profit.
- The employer and any labor union representing the staff have negotiated a collective bargaining settlement that prohibits off-duty hashish use.
- The worker works ready that’s hazardous, harmful, or important to public welfare and security, which incorporates, however shouldn’t be restricted to: the operation of plane, watercraft, heavy tools, heavy equipment, business automobiles, college automobiles, college buses, or public transportation; using explosives; public security first responder jobs; and emergency and surgical medical personnel. If the worker works in such a place, the employer might undertake and implement insurance policies which prohibit the use or consumption of hashish inside the twenty-four (24) hour interval previous to a scheduled work shift or task. After all, these working in Division of Transportation-regulated safety-sensitive positions, resembling business motorized vehicle drivers, pilots, and pipeline staff, are topic to obligatory alcohol and drug screening. The DOT has issued separate bulletins reminding DOT-regulated employers and their staff that it “stays unacceptable for any safety-sensitive worker topic to drug testing underneath the Division of Transportation’s drug testing rules to make use of marijuana,” even for medicinal use.
What about job candidates? The Hashish Act’s limitations on employers confer with staff, with restrictions on the flexibility of an employer to “fireplace or take disciplinary motion in opposition to an worker,” neither of which apply to job candidates. That stated, the general intent of the Hashish Act’s employment provisions is to guard personal off-duty hashish use at a broad degree – any use by a job applicant is essentially personal and off-duty. As such, whereas job candidates and pre-employment checks should not expressly talked about within the restrictions on employers, the general intent of the legislation means that pre-employment hashish testing in Rhode Island is now prohibited, except the employer suits inside one of many slim exemptions recognized above.
Rhode Island employers ought to seek the advice of skilled employment counsel to find out what modifications to their drug testing insurance policies could also be vital in gentle of the brand new legislation and Rhode Island’s medical marijuana legislation, which supplies broader protections to staff who lawfully use medical marijuana, or to develop a written coverage. Employers conducting drug checks in Rhode Island additionally should guarantee their insurance policies and practices adjust to the state’s drug testing statute.
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