Titled "Protections for Public Employees Who Use Medical Marijuana as Qualified Patients," SB 166 would not only protect medical marijuana users from adverse actions on the job but would also create a formalized process for marijuana usage testing on public employees. The bill also requires employers to make reasonable accommodations for medical marijuana users unless the employer is able to "demonstrate that the accommodation would pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prevent an employee from fulfilling his or her job responsibilities."

SB 166 does not apply to employees in the private sector and provides exception language for positions in law enforcement. Additionally, SB 166 affords employers the right to take adverse action if they are able to "establish a preponderance of the evidence that the lawful use of medical marijuana is impairing the employee's ability to perform his or her job duties or responsibilities."

The bill also requires that employers who maintain drug testing policies provide written notice to applicants or employees who test positive and inform them of their right to request a confirmation test. The applicants/employees also need to be made aware that they are permitted to submit information/documentation to contest or explain a result. This may include a physician certification for medical marijuana or a registry identification card.

In the event SB 166 passes, only public employers will be affected. Nevertheless, private employers are encouraged to review internal policies concerning marijuana drug testing to prepare for any potential future changes that could someday affect the private sector.

Posted: November 13, 2023