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New Hawaii Medical Marijuana Law Bars Use in Workplace; Zero Tolerance Policies Still Enforceable

By Andrew L. Pepper and Wayne S. Yoshigai
  • July 24, 2015

Closing a gap in Hawaii’s medical marijuana law, a new law sets up a regime of vertically integrated grow facilities and retail dispensing licenses for the delivery of medical marijuana to “cardholders” in Hawaii. The stated intent of the new law, signed by Governor David Ige on July 14, 2015, is to ensure a commercialized system for the delivery of marijuana to “seriously ill” individuals in Hawaii.

The new law amends an existing 15-year-old law that allowed the use of medical marijuana, but provided no legal way to obtain the drug. The new retail dispensing provisions close that gap in Hawaii’s law.

The new law, however, did not modify existing Hawaii law on workplace use of marijuana, continuing to recognize the right of employers to maintain “zero tolerance” policies regarding drug use. It expressly states that “the authorization for the medical use of marijuana shall not apply to the medical use of marijuana in the workplace of one’s employment.” Further, even in its medicinal form, marijuana remains a Schedule I drug (similar to heroin) under both Hawaii and federal law — meaning, by law, “no currently accepted medical use and a high potential for abuse.”

The active ingredient of marijuana is fat soluble and it tends to show up on drug tests for a considerable number of days following consumption. Depending on the frequency of use, marijuana can be detected in urine for a period of between a week and a month after consumption. Thus, some Hawaii attorneys representing employees have argued that simply having marijuana metabolites detected during a drug test does not indicate “use” in the workplace. To date, neither the Hawaii Civil Rights Commission nor an appellate court in Hawaii has decided the issue. Thus, while it is an almost universal practice of Hawaii employers to consider a positive marijuana drug test result as a disallowed “use” in the workplace, the issue remains open. Further, the Hawaii courts have not provided any guidance as to whether an employer must allow the use of a Schedule I drug as part of a reasonable accommodation of an employee’s underlying medical condition (i.e., disability). Accordingly, employers should consult with employment counsel to analyze each case of employee marijuana use on an individual basis.

Please contact your Jackson Lewis attorney if you have any questions about this new law. For more information about drug use in the workplace, please visit our Drug and Alcohol Testing Law Advisor Blog.

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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