A Potential Unanticipated Inconsistency in Maryland Law With the Legalization of Cannabis Use
March 23, 2023
Use of medical cannabis has been legal in Maryland since 2014. As a result of recent legislation, cannabis possession and use (for any reason) in limited quantities will become legal in Maryland on July 1, 2023, and, from January 1, 2023 until July 1, 2023, possession of smaller amounts of cannabis has been decriminalized. While recreational cannabis use was legalized in Maryland pursuant to 2022-2023 legislation and a Constitutional Amendment approved by voters in November 2022, the Maryland General Assembly has not yet addressed how the broader legalization of cannabis will affect certain concerns under employment-related legislation.
The changes in legislation related to cannabis and the failure to update the current landscape of employment statutes as they relate to recreational and medical marijuana use, however, have created what is likely an unintended and overlooked hurdle to compliance with Maryland’s job-related alcohol and controlled substance testing statute.
In a statute that long pre-dates the legalization of cannabis in the State, Maryland’s Health General Article sets forth stringent standards for employers seeking and laboratories conducting job-related drug and alcohol screening. See MD. CODE ANN., HEALTH-GEN. ART., § 17-214. Under Maryland law, cannabis is still considered a “controlled dangerous substance” because it is considered such by the federal government and, thus, subject to job-related testing. Currently, a laboratory or physician obtaining employee information pursuant to a drug and alcohol test is prohibited from revealing to the employer the individual’s use of a nonprescription drug (excluding alcohol) that is not prohibited under the laws of the State (which will include cannabis as of July 1, 2023) or the use a medically prescribed drug (which includes those with a medical cannabis card). Thus, under the plain reading of the statute, an employer can still test for cannabis, but the results cannot be reported to it by the laboratory.
There are two exceptions to the prohibition of these disclosures. The first exception is those disclosures that are required under the federal Commercial Motor Vehicle Safety Act of 1986 and the federal Motor Carrier Safety Regulations. For any employee holding a commercial driver’s license, disclosure by the testing operator of cannabis use is likely still permitted under the Maryland statute. This prohibition may also be waived “if, prior to the administration of a preliminary screening for controlled dangerous substances, the test operator notifies the applicant that if the preliminary test is positive, the applicant may voluntarily disclose and provide documentation to the operator that the applicant is taking a legally prescribed medication.” While the application of this carve out is arguably ambiguous and does not appear to have been challenged or interpreted in relevant case law, a reasonable reading of this provision is that this prohibition is waived if an applicant or employee voluntarily provides information regarding his or her medical cannabis use.
This apparent inconsistency in the legislation is another issue in a growing list of challenges Maryland employers will face as recreational cannabis becomes legal (and have been facing since the 2014 legalization of medicinal cannabis). As it now stands, while employers may discipline their employees for legal cannabis use, to remain compliant with the plain language of Maryland’s job-related drug and alcohol screening statute, however, employers cannot receive the results of any cannabis-related drug testing that occurs within the State (subject to the aforementioned exceptions). This obviously imposes a significant obstacle for employers trying to make decisions about certain employees, particularly if they are being placed in or occupying safety sensitive jobs that operate heavy equipment. It is unclear how this apparent inconsistency will play out in practice, but it is important that businesses continue to monitor this changing landscape as it relates to these challenges in the workplace.