Employers still harboring concerns over marijuana legislation

PROVIDENCE – Rhode Island employers say lawmakers have heard their pleas by adding greater employer protections in legislation to legalize marijuana in the state, but they still have a number of concerns.

On March 1 in the Senate lounge, Sen. Joshua Miller, D-Cranston, and Rep. Scott A. Slater, D-Providence, announced the introduction of identical legislation in the R.I. General Assembly calling for legalization of marijuana.

Lawmakers are intent on passing the legislation due to potential revenue loss to neighboring states, Massachusetts, and Connecticut, who have already passed legalization. Revenue estimates for the initial year of legal adult use recreational cannabis in the state is $20 million, both Miller and Slater said when the legislation was filed.

Legal marijuana might be an economic driver for the state, however employers are concerned about how to address employees possibly operating under the influence in the workplace.

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The legislation includes some provisions that were approved last year in the Senate bill, such as allowing employers to enforce their own drug policies, without having to accommodate medical use of marijuana in the workplace.

One change allows employers to refuse to hire, discipline, or discharge an employee, due to working under the influence, or being in violation of a workplace drug policy.

The question is: does the legislation go far enough with its employer protections?

Gregory Tumolo, an attorney, and partner at Providence-based Lewis Brisbois Bisgaard & Smith, said determining and enforcing impairment of an employee in the workplace is an issue. He said Rhode Island employers would like to be able to conduct random drug testing.

Tumolo, who represents the R.I. Business Coalition, said a problem is that Rhode Island labor law does not allow random drug testing. Testing is only permissible if an employer “has reasonable grounds” to believe that an employee appears to be impaired and under the influence.

Tumolo said employers also don’t approve of the “free pass” employees get after a first positive drug test, allowed under state law.

“Employees testing positive are not terminated on that basis, but are instead referred to a substance abuse professional,” he said, while reading the law. “So, an employer cannot terminate an employee for a failed drug test.”

Tumolo also serves as director of legislative affairs at the R.I. Society for Human Resources Management, an organization concerned about the negative impacts that legal marijuana will have on workplace health and safety.

“One of the major concerns we voiced last session is that the legislation doesn’t protect employers that have employees performing safety sensitive job functions,” he said. “That is job functions that are hazardous or dangerous or has something to do with public health and safety.”

Tumolo said the new legislation protects employers with hazardous jobs by prohibiting the use of cannabis for a 24-hour period prior to a scheduled work shift or assignment.

“It’s an improvement,” he said. “We are wondering if the 24-hour period is sufficient. Is it possible that someone could consume cannabis 25-hours before coming into work, and still be in an unfit condition when they show up?”

Tumolo said a medical marijuana cardholder who uses cannabis daily will always have a baseline of the drug in their system.

“Unlike alcohol there is not yet any scientifically validated test for impairment from cannabis,” he said. “There is also not a telltale sign with people consuming CBD gummies, soda and other edibles – there is not often a smell.”

Dave Chenevert, executive director of the R.I. Manufacturers Association, said the marijuana legislation is an improvement over its previous version, but the industry still has its safety and equipment damage concerns.

“The legislation is pretty much giving the employer leeway to run their operation the way they choose to run their operation,” he said.

However, Chenevert said, manufacturers are not pleased with the “free pass” given to an employee for an initial positive test.

John Simmons, president of the R.I. Business Coalition, said his concerns are two-fold: federal prohibition’s impact on the state’s federal contractors, since cannabis is a federally prohibited substance, and drug testing in the workplace.

“The testing is going to be the issue,” he said. “Is there an accurate test that can be used? With alcohol there’s a test, but I don’t know about marijuana.”

Karl Wadensten, CEO, and president of Richmond-based manufacturer VIBCO Inc., said the legislation is “going to bring a tsunami of questions and concerns.”

Wadensten feels lawmakers and employers are ill-equipped to handle various impacts across industry that legalization will create.

“I’m going to play the skeptic and cynic on this one,” said Wadensten. “Do they have the stamina at the Statehouse to keep this on the forefront for adjusting legislation for the protection of people, number one, and employers, number two?”

“They did a good job of putting this language in, but this language is the beginning of many, many amendments and language changes to help protect people, and to help protect employers,” he said.

Chenevert said RIMA will be hosting its twice annual board meeting at the Rhode Island Society of CPAs in Cranston on March 10 when employers will gather to discuss the topic and other issues facing the industry.

Gov. Daniel J. McKee’s office did not immediately respond with comment about the employer protection language in the legislation. His administration was in the process of reviewing the legislation to see how it compares to his proposal in his proposed fiscal 2023 budget.

Cassius Shuman is a PBN staff writer. Contact him at Shuman@PBN.com. You may also follow him on Twitter @CassiusShuman.