By Mark T. Broth
Under both federal and New Hampshire law, the possession, distribution, or use of marijuana is a criminal act. New Hampshire law makes a limited exception for those persons who qualify to use “medical marijuana.” Federal law contains no such exception. Technically, those persons permitted by the State to use marijuana for medical purposes are still subject to arrest and prosecution under federal law.
During the Obama administration, the United States Attorney General announced that federal dollars would not be expended to prosecute marijuana-related crimes in states which have legalized marijuana for medical or recreational use. At this point, it is unclear whether the Trump administration will continue this policy, or whether the federal government will seek to prosecute persons involved in those states that allow marijuana use, cultivation, and possession.
The fact that marijuana remains illegal in New Hampshire has had little impact on usage. According to statistics published by the Partnership for a Drug Free New Hampshire, 30.1% of New Hampshire residents ages 18-25 have used marijuana within the past 30 days. This is the fifth highest rate of usage in that age bracket among all states, and far exceeds the national average of 19.6%. A recent CBS report ranked New Hampshire fourth, behind only Alaska, Vermont, and Colorado, in the percentage of adults (14.8%) who use marijuana. With both Maine and Massachusetts having passed laws that will legalize recreational marijuana within the next several years, and the decriminalization of small amounts in Vermont, the availability of marijuana within New Hampshire is almost certain to increase.
What does this mean for New Hampshire employers? For many years, employers have attempted to maintain drug free workplaces. In the private sector, the primary tool for weeding out drug use has been pre-employment drug testing. Accurate tests have been available for many years that can identify the presence of the active chemicals in controlled substances. However, a basic problem with marijuana testing is that it is not time specific. While certain drugs are only detectable in a urine sample for a brief period of time, an individual may test positive for marijuana many weeks after they have last used. Standard drug tests cannot distinguish between those employees who use marijuana before or during work hours, and those employees who engage in “responsible use” outside of working hours, in a manner consistent with responsible use of alcohol.
Even if marijuana testing was more accurate, can New Hampshire employers afford to disqualify a significant percentage of potential job applicants solely on the basis of marijuana use? At 2.6%, New Hampshire has one of the lowest unemployment rates in the nation. With the “baby boomer” population reaching retirement age, a decline in migration from other states, low rates of retention of recent college graduates within the State, the low rate of foreign immigration, and among the lowest birth rates in the US, New Hampshire is heading for what Polecon Research described in 2016 as a “perfect storm” of labor shortages.
Unlike private sector employers, public employers cannot relocate their operations to states with greater workforce availability. This means that public employers will either need to pay more to attract and retain out of state talent or make do with the available in-State workforce. Which brings us back to marijuana. Clearly, there are some occupations (law enforcement, EMS, CDL license holders, etc.) where criminal drug use cannot be tolerated. But for many other public sector workforce occupations, and for many jobs in the private sector economy, blanket disqualification of marijuana users from the workforce may no longer be practical.
Even if a public employer wanted to exclude all marijuana users from the workforce, constitutional considerations limit the ability to drug test employees who are not engaged in law enforcement, commercial driving, and certain other safety sensitive functions. Employers may need to consider redefining the “drug free” workplace as one that does not exclude those who use marijuana, but focuses instead on the concept of responsible use. Like alcohol use, marijuana use is a learned behavior. Employers may need to consider shifting their focus from exclusion to enforcement of reasonable use standards: no use, possession, or intoxication during work hours; and no off-duty use that would directly interfere with the performance of job duties (such as loss of license).
Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2017 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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