On May 25, 2022, Rhode Island Governor Daniel McKee signed into the law the Rhode Island Cannabis Act, which legalized recreational cannabis. As a result, Rhode Island has joined a small but growing minority of states that extend employment protections to employees who use marijuana during non-working hours. With certain exceptions discussed below, an employer’s ability to take adverse action as a result of an applicant’s or employee’s positive drug screen for cannabis is likely significantly limited absent evidence of current impairment at the time of the test. Although employers are still expressly permitted to implement drug-use policies that prohibit employees from being under the influence of cannabis in the workplace, including medical cannabis, several of the law’s key provisions raise more questions than they answer regarding how such policies can be implemented effectively.
How The Law Limits an Employer’s Ability to Regulate Off-Duty Cannabis Use
Medical cannabis has been legal in Rhode Island since the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act passed in 2006. Effective immediately, the Rhode Island Cannabis Act allows state residents over the age of 21 to possess and consume cannabis for recreational purposes. At the same time, the General Assembly has limited the ability of Rhode Island employers to discipline employees for off-duty cannabis use. As a general rule, employers cannot “fire or take disciplinary action against an employee solely for an employee’s private, lawful use of cannabis outside the workplace and as long as the employee has not and is not working under the influence of cannabis[.]”1 As a result, employers are going to be limited in their ability to act on pre-hire drug tests that report positive for marijuana use.
Employers can still implement and enforce policies to prohibit cannabis in the workplace and prohibit employees from performing work while under the influence, including work at remote locations. Notably absent from the law, however, is clear guidance on when an employee is considered “under the influence.” Yet, the law provides that an employee is not considered “under the influence solely for having cannabis metabolites in his or her system.”2 In other words, if an employee tests positive for cannabis on a test that measures only cannabis metabolites, those results do not establish that employee is under the influence within the meaning of the law. Employers may struggle to establish that an employee is under the influence and, therefore, subject to discipline by an employer under its policy. [Read More @ Littler]
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