Revised Medical Marijuana Law Will Put More Pressure on Hawaii Employers

Although the Hawaii Medical Marijuana dispensary law is less than a year old, and not a single dispensary has yet opened, the 2016 Hawaii Legislature reopened the law and made significant changes. Governor Ige signed the legislation on July 11, 2016.

The revisions to the Medical Marijuana law (Hawaii Revised Statutes Chapter 329) and associated drug paraphernalia laws and professional licensing laws will put increased pressure on employers in dealing with employees who use medical marijuana. Two of the changes highlight the problem.

First, the Legislature has opened the floodgates in terms of the number of people who may be able to obtain certification to use medical marijuana. Concerned thatdoctors are continuing to shy away from participation in the medical marijuana program and, thus, not enough certifications are being made to support the nascent dispensary system, the Legislature authorized advanced practice registered nurses ("APRN") to certify marijuana use for medical purposes. This should result in a rapid acceleration in the number of certifications written and, hence, the number of employees who turn up "hot" during workplace drug testing. This in turn will increase the burden on employers in terms of the tensions that exist between enforcement of drug free/zero-tolerance policies and employees claiming a "right" under Hawaii law to use marijuana as a "medicine"that an employer must permit (either as a disability accommodation or as a general lawful use). Several cases seeking to resolve these tensions are pending before the Hawaii Civil Rights Commission but clarity regarding the rights of employers is still in the distance.

Second, the Legislature has exempted drug paraphernalia used in conjunction with the use of medical marijuana from the general prohibitions relating to such paraphernalia. Thus employers should expect to find more and more paraphernalia in the workplace, with employees claiming they are "entitled" topossess such now-legal items.s This change also isproblematic for employers whose existing drug-free/zero tolerance policies state their prohibitions in terms of "legal" and "illegal" substances and angible tthings or who simply ban "paraphernalia," with reference to the definition of that term under Hawaii law. Employers facing such problems should consult with counsel regarding the handbook policy changes necessary to eliminate these potential points of contention.