Voters in several states will decide whether marijuana or, in one case, psychedelic substances should be legal in the upcoming November 5, 2024 general election. Employers should keep their eyes on these ballot measures and prepare for questions regarding changes to workplace policies if some or all of them pass. A rundown of the ballot measures in these jurisdictions follows.

Florida

A Florida ballot measure entitled, “Adult Personal Use of Marijuana,” would allow adults of 21 years and older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption (whether by smoking, ingestion or otherwise). This ballot measure allows medical marijuana treatment centers and other state-licensed entities to acquire, cultivate, process, manufacture, sell and distribute such products and accessories. The non-medical personal use of marijuana products and accessories by an adult in compliance with this measure would not be subject to any criminal or civil liability or sanctions under Florida law. Physicians similarly would not be subject to criminal liability, civil liability, or sanctions solely for issuing a physician certification with reasonable care to a person diagnosed with a debilitating medical condition complying with the proposed law.

Actions and conduct by a medical marijuana treatment center registered with the Florida Department of Regulations likewise would be protected against criminal liability, civil liability or sanctions under Florida law. Medical marijuana treatment centers will be allowed to acquire, cultivate, process, manufacture, sell and distribute marijuana products and accessories to adults for personal use should the ballot measure pass – six months after approval by the voters. This ballot measure also establishes possession limits (not to exceed 3.0 ounces), except that not more than five grams of marijuana may be possessed in the form of a concentrate for personal use.

Notably, this state ballot measure would not change or immunize violations of any federal law. The ballot measure does not require any accommodation of on-site medical use of marijuana in any correctional institution or detention facility, place of education or employment, and does not permit smoking medical marijuana in any public place.

Massachusetts

In Massachusetts, the “Legalization and Regulation of Psychedelic Substances Initiative” is a measure on the ballot to legalize certain natural psychedelic substances. These proposed natural psychedelic substances include: dimethyltryptamine (an endogenous hallucinogen referred to as “DMT”), mescaline; ibogaine, psilocybin, and psilocin. The initiative would allow adults aged 21 and over to grow these psychedelic substances on secured personal property. The measure would also authorize persons aged 21 or older to possess a “personal use amount” of these substances. Personal use amount is defined as up to one gram of psilocybin, one gram of psilocyn, one gram of dimethyltryptamine, 18 grams of mescaline, and 30 grams of ibogaine, in addition to whatever they might grow at their home, and to give away up to the personal use amount to a person aged 21 or over. Nothing in the measure requires an employer to permit or accommodate the use of natural psychedelic substances in the workplace.

The stated purpose of this initiative is to allow regulated access for adults 21 years of age and older to natural psychedelic substances that show therapeutic potential by removing criminal penalties for limited personal use. Advocates of the initiative have stated that the intent is to remove the personal use of natural psychedelic substances from the illicit market and provide supervised, safe access in a therapeutic setting through a regulated and taxed state system.

Nebraska

Nebraska’s ballot measure would create the Nebraska Medical Cannabis Patient Protection Act. This Act would nullify current state and local penalties for a qualified patient’s use, possession, and acquisition of limited quantities (the allowable amount is up to five ounces) of cannabis for medical purposes. A qualified patient would be an individual 18 years of age or older with a written health care practitioner recommendation or an individual is under 18 years of age who has a written recommendation from a health care practitioner and the written permission of a legal guardian or parent who can make health care decisions for the individual.

Nebraska state laws regulating hemp and the state’s medical marijuana program would not be affected by the Act, if adopted by voters. For example, this initiative would define “cannabis” to exclude hemp regulated by the Nebraska Hemp Farming Act at Section 2-503(13), and mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds, the sterilized seed of the plant incapable of germination, or cannabidiol contained in a drug approved by the FDA.

The Nebraska Medical Cannabis Patient Protection Act would allow a qualified patient to use, possess, and acquire an allowable amount of cannabis and cannabis accessories for the alleviation of medical conditions, its symptoms, or side effects of the condition’s treatment without running afoul of state or local law. A caregiver’s assistance to a qualified patient to engage in these same activities on behalf of the qualified patient also would be decriminalized. Conduct protected by the Act would be excused from the provisions of the Uniform Controlled Substances Act.¹

North Dakota

In North Dakota, the “Cannabis Legalization Initiative” would allow for the production, processing, and sale of cannabis and the possession and use of various forms of cannabis by individuals who are 21 years of age and older. Similar initiatives and legislation have been defeated several times since 2018. The measure is opposed by the North Dakota health care community and many law enforcement agencies. Opponents cite mental health concerns associated with use of the drugs.

This initiative states it would not prohibit an employer from:

• Disciplining or terminating an employee for possessing or consuming adult-use cannabis products in the workplace or for working while under the influence of cannabis, including while an employee is on call.
• Adopting a reasonable zero-tolerance or drug-free workplace policy, or any employment policy concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call if the policy is applied in a nondiscriminatory manner.
• Disciplining or terminating an employee for violating an employer's employment policies or workplace drug policy.

This initiative, if enacted, would allow an employer to consider an employee to be impaired or under the influence of cannabis if the employer had a good-faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee's job position, although presumably an employer would not need to make such a determination if it had a zero tolerance policy prohibiting all such use.

These “symptoms” could include:

• Observations of the employee’s speech, physical dexterity, agility, coordination, demeanor, or irrational or unusual behavior;
• Negligence or carelessness in operating equipment or machinery;
• The employee’s disregard for their own safety or the safety of others;
• Involvement in any accident that results in serious damage to equipment or property;
• Disruption of a production or manufacturing process; or
• Carelessness that results in any injury to the employee or others.

If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer would have to afford the employee a reasonable opportunity to contest the basis of the determination. It is difficult to reconcile this provision with the provision allowing employers to adopt zero-tolerance policies.

This measure would not create or imply a cause of action for any person against an employer where:

• The employer requires an employee or applicant to submit to reasonable drug and alcohol testing under the employer’s workplace drug policy;
• An employee refuses to be tested or to cooperate in testing procedures;
• The employer disciplines or terminates an employee’s employment based on the employer’s good-faith belief that the employee used or possessed cannabis in the employer’s workplace, or while performing the employee’s job duties, or while on call in violation of the employer’s employment policies;
• The employer disciplines or terminates employment, based on the employer’s good-faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis while at the employer’s workplace, or while performing the employee’s job duties, or while on call in violation of the employer’s workplace drug policy;
• There is injury, loss or liability to a third party if the employer did not know or have a reason to know the employee was impaired.

South Dakota

South Dakota’s Initiated Ballot Measure 29 would legalize the recreational use, possession and distribution of marijuana for individuals 21 years of age or older. The possession, ingestion and distribution of marijuana and marijuana paraphernalia would remain illegal for individuals under the age of 21, along with driving under the influence. The measure would also restrict the locations where individuals may possess or consume marijuana, such as schools and places where tobacco is prohibited, and property owners may regulate the use of marijuana on their property. The ballot measure does not affect state laws dealing with hemp or the state’s medical marijuana program. The ballot measure legalizes marijuana-derived substances considered felony-controlled substances under state law. Marijuana remains illegal under federal law.

Importantly, this measure would not:

• Require an employer to permit or accommodate an employee to engage in conduct allowed by this measure; and
• Affect an employer’s ability to restrict the use of cannabis by an employee.

Conclusion

Employers with operations in these states should monitor these ballot measures for passage. If these measures are approved, employers will need to consider whether and how to update their employment policies. Additionally, employers should be prepared to clearly communicate any written changes that either allow or prohibit the use of cannabis and/or psychedelics during the course of the workday.