By Tim Holly 

Many employers have been tracking the marijuana issue with great interest.  The most recent version of the bill to legalize non-medical use of marijuana (HB 110) was released on May 16.   

This provision is significantly different from what was originally proposed, but it is substantively the same as what we saw near the end of last summer.  Most employers feel the state remains a long way from something of comfort to employers.  

This version states that nothing "in this chapter" is intended to require an employer to permit or accommodate any of the following while the employee is at work: the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana.  It also states that nothing "in this chapter" is intended to affect the ability of employers to:   

• Have policies restricting the use of marijuana by employees at work.   
• Have policies necessary to prevent the loss of a monetary or licensing-related benefit under federal law or regulations.   
• Discipline employees under policies necessary to prevent the loss of a monetary or licensing-related benefit under federal law or regulations.  
• Discipline employees who are under the influence of marijuana at work. 

"Work" is defined as service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.  "Under the influence" is defined to mean that because of marijuana use, the individual is less able than the individual would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in exercising the responsibilities of their job. 

Employers remain concerned that this social change legislation will have even greater impact when applied to other law.  Specifically, the "in this chapter" language concerns many employers who simply want any law that brings social change (that many do not want) to make clear that the social change will not impact employers' ability to draw lines where they wish when it comes to the workplace.  Such employers have advocated for something much simpler and clearer such as this: 

Nothing in Delaware statute or regulation shall be applied to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana, or to affect the ability of employers to have policies restricting the use of marijuana by employees, or discharge or otherwise discipline employees based on any issue pertaining to marijuana. 

An exception to the above language might be needed to account for the fairly unique provision currently in Delaware's medical marijuana law, which prohibits "discrimination."  However, that also is a law that many employers did not welcome and have struggled to deal with.  The point is that most employers can be expected to oppose the bill unless the bill makes very clear that employers will remain at least as free as they are now to adopt whatever policy they deem best for their business "“ clarity that does not exist in this bill. 

This version of the bill does improve one glaring problem with the old bill, which is that it previously addressed permissive action by the employer with respect to things done "at work," without accounting for the fact that many do not work at the same physical place and it, is not always clear when they are at work.  This new bill defines "work" as defined in Delaware's unemployment compensation law (i.e., service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied).  As such, "at work" means at an activity "“ not at a place.  However, most employers are still unsatisfied for the reasons described above and because they feel this still invites unwelcome and potentially expensive litigation about if, when, how an employee is "working."   

Many employers also take issue with the word "necessary" in connection with "to prevent the loss of a monetary or licensing-related benefit."  It is unclear what an employer would need to prove to establish that a policy or discipline is "necessary" to prevent loss.  In theory, an employer could find some other law, rule, regulation, or policy associated with some applicable monetary or licensing-related benefit that states the necessity of the policy or discipline.  But, in practice, that often is illusive.   

 This version of the bill also attempts to fix another glaring problem with the prior bill, which is that "under the influence" was undefined.  The new bill still uses the term "impaired by" in addition to "under the influence" and it still does not define "impaired by," which presumably means something different than "under the influence."  Even more problematic, the definition essentially requires that an employer establish a base rate, prior to marijuana use, to have any shot at establishing the standard of "less able than the individual would ordinarily have been."  That presumably would necessitate actual testing before and after marijuana use, for judgment, control, and/or care.  Furthermore, the words "clear," "sufficient," and "due" (related to judgment, control, and care) are notorious words in litigation where a great deal of dispute can exist about their meaning.   

Finally, if this bill becomes law, at a minimum, any employer who might want to establish that an employee is "under the influence" will need to make sure the "responsibilities of their job" are well established for each position via a job description. But even that is an issue one can anticipate being the subject of litigation. 

Some argue that none of this is anything for an employer to worry about.  There is not a specific private right of action stated in this bill, meaning that it is not clear that an aggrieved employee could sue for something arguably violating the bill, if it becomes law.  However, private rights of action can be implied in laws, as recently done with respect to the discrimination provision in the medical marijuana law.   

Employers concerned about this issue might want to consider making their voices heard now, because it would be a very big mistake to assume personal involvement in the process does not matter or that this will just go away without such opposition.  Those supporting this as law, should just know that, if/when you seek legal advice about what you can and cannot do when it comes to an employee who has used marijuana (especially without being a licensed card holder for medical use), you can expect answers like "it isn't clear" and "we can't be sure" or, at best, "with all likelihood" or "probably" "“ because the bill simply does not provide clarity.