The legalization of cannabis in several states had left a major question unanswered: is an employee who violates the federal Controlled Substances Act (“CSA”) by distributing cannabis as part of his or her job still subject to the federal Fair Labor Standards Act (“FLSA”), which provides for the payment of wages?
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On October 12, 2019, Governor Newsom signed Assembly Bill 1291 (“AB 1291”) into law, which requires companies to sign a so-called “labor peace” agreement with a union or risk losing their cannabis license; thereby, strengthening already union-friendly statewide cannabis law.
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On April 9, 2019, New York’s City Council passed legislation, available here, which will prohibit employers from requiring prospective employees to submit to testing for tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. If, as expected, Mayor Bill de Blasio signs the law into effect, the New York City Human Rights Law will be amended to make it a discriminatory practice to require pre-employment marijuana testing of employees in New York City.
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The legalization of recreational use of marijuana in several states, including California, has left many employment policies vague and confused. This article offers insights to questions every employer should be asking in light of legalization.
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*This article originally appeared in National Defense Magazine on January 30, 2018.
For federal contractors required to provide drug-free workplaces, the national trend toward legalization of marijuana will be a critical issue that will require attention in the coming years.
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