Drug Policies Up in Smoke

WHAT LEGALIZATION MEANS FOR DELAWARE BUSINESSES

BY MOLLY DIBIANCA

On April 23, 2023, Delaware became the 22nd state in the country to legalize marijuana for recreational use. With the passage of HB1, Delaware employers face new challenges and questions. This article is intended to offer some answers.

THE LAW

HB 1 removes all penalties for use or possession of a “personal use quantity” (1 ounce or less of leaf marijuana or equivalent amounts in other forms) of marijuana and marijuana accessories. It also provides that adults 21 years of age and older may share a “personal use quantity” of marijuana and may possess, use, display, purchase, or transport it without penalty.

HB 1 prohibits the sale of marijuana, regardless of the quantity. Marijuana in any quantity may not be gifted contemporaneously with another transaction—meaning a business could not offer free marijuana with the purchase of goods or services. Consumption in a moving vehicle or in an area accessible by the public remains unlawful, as does the growing, manufacturing, and cultivation of marijuana.

WEED AT WORK

Just because recreational marijuana is legal does not mean it’s allowed in the workplace. HB1 does not prohibit or impede the implementation or enforcement of a drug-free workplace policy. Just as you can decline to hire smokers, employers in Delaware may legally exclude individuals who use marijuana recreationally. This can be done with the standard pre-employment drug screen. Of course, just because it can be done does not mean that it’s a good choice for every employer. Some Delaware employers elect not to screen for cannabinoids for a variety of reasons, including that they simply cannot find enough staff and do not want to exclude any viable candidate.

Employees have no legal right to consume or possess marijuana during working time. Just as employers can prohibit its workforce from smoking cigarettes or drinking alcohol during the workday, they can prohibit employees from possessing or consuming marijuana products during working time.

MEDICAL MARIJUANA

When considering how to address recreational marijuana in the workplace, Delaware employers should be mindful of the prohibition against discrimination based on the use of or licensure for medical marijuana. In Delaware, employers may not discriminate against an applicant or employee because the employee has a medical-marijuana card. Unlike candidates who use marijuana recreationally, medical-marijuana cardholders may not be precluded from employment based on their status as cardholders or because they use medical marijuana. Thus, an applicant with a medical-marijuana card who tests positive for cannabinoids may not be excluded from consideration unless the employer would lose a monetary or licensing-related benefit under federal law or federal regulations by hiring the candidate.

NEXT STEPS

There are several steps employers can take now to address the potential impacts of legalization:

• Communication is key. Employers may want to consider a communication to employees that possession, consumption, and impairment are prohibited.

• Policy amendments. Employers also may want to consider updating or amending their drug-free workplace policy to specifically address the use of recreational marijuana.

• Adjust practices. Employers may want to evaluate whether they want to continue to screen for marijuana in the initial, pre-employment drug screen. This can be done annually to determine whether the employer is losing candidates as a result of legal marijuana use.

Molly DiBianca is the member in charge of the Delaware office of Clark Hill, PLC, where she mediates and litigates commercial and employment disputes.