and increased punishment were enacted when the United States Congress passed the Boggs Act of 1952
and the Narcotics Control Act of 1956. The acts made a first-time cannabis possession offense a minimum of two to ten years with a fine up to $20,000; however, in 1970 Congress repealed mandatory penalties for cannabis offenses.
Although the Controlled Substances Act (CSA) of 1970 eliminated mandatory minimum sentences and reduced simple possession of all drugs from a felony to a misdemeanor, mandatory sentencing was reinstated under the Reagan administration in 1986 with passage of the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984
. This legislation created the Sentencing Commission, which established mandatory sentencing guidelines. The Anti-Drug Abuse Act of 1986 reinstated mandatory prison sentences, including large scale cannabis distribution.[
Later an amendment created a three-strikes law
, which created mandatory 25-years imprisonment for repeated serious crimes – including certain drug offenses – and allowed the death penalty
to be used against "drug kingpins"
The Tide Turns
In the fall of 1998, California voters had approved Proposition 215
to legalize medical cannabis
, and similar measures were up for vote in several more states.
Cannabis and Drug Testing in Rhode Island
The Rhode Island Cannabis Act
is on track to be passed during this legislative session. The pending law (2022 -- S 2430 Substitute A THE RHODE ISLAND CANNABIS ACT) is primarily focused on the establishment of licensing and testing of cannabis. There is also an important section on expungement of marijuana records (12-1.3-5), civil, misdemeanor, or felony for offenses decriminalized under this act (typically 2 oz or less).
Under section 12-1.3-5(l), when applying for employment, applicants can state they have not been convicted of the crime(s) for which expungement was or would be granted. Exceptions are law enforcement, bar of any court, teaching certification applications, coaching applications, and early childhood education positions.
The Rhode Island law does not address employer testing in any way, which puts the ball firmly in the employer's court. As reported in JDSUPRA
, workplace drug free policies are still generally permitted. However, this only allows employers to prohibit employee cannabis use during work hours.
What About Pre-employment Testing?
As reported in the same May 14, 2021 JDSUPRA article, in many states that have legalized recreational use, employers generally are allowed to request a current employee to undergo a drug test if they have a reasonable suspicion that the employee was working in an “impaired” state. The determination of reasonable suspicion, however, as mentioned above, is tricky, and states may differ in terms of what factors may support a reasonable suspicion determination (the basis of which generally should be properly documented) and may pose additional requirements. Moreover, states may have different rules on if, and when, a positive marijuana test can be used to discipline an employee, and what steps employers may need to take before they can take adverse employment actions.
However, if recreational marijuana use is legal, if an employer has not yet hired an applicant, do they have the right to require prospective employees to undergo testing for the presence of marijuana as a condition of employment? And can the employer take adverse action should the candidate test positive?
The state of New York has addressed this
(in part). Although New York’s MRT Act does not explicitly address employers’ ability to conduct pre-employment drug screening, it makes it unlawful for an employer to refuse to hire a job applicant because of his/her legal use of cannabis, essentially restricting an employer’s ability to reject an applicant merely because s/he tested positive for cannabis. New York City employers, of course, have already been prohibited from conducting pre-employment drug testing for marijuana since May 10, 2020, with certain exceptions.
Next Steps for Rhode Island Employers
As advised by Greenwald Doherty LLP, in the JDSUPRA article
, recreational marijuana use laws are nuanced, complex, and relatively new. Employers in states that have recently legalized recreational marijuana use should ensure they understand the nuances of the specific law in their state, and review their employment policies related to pre-employment drug screening, workplace drug use and drug testing, including establishing a framework so proper steps may be followed if there is a reasonable suspicion that an employee is working under the influence of marijuana. Employers in these states should also train and prepare frontline managers/supervisors so that they implement these policies consistent with the new laws and do not inadvertently create liability for their employers.
ASN Stands Ready to Help
As is obvious from the above reporting, the legalization of recreational marijuana will be difficult for many Rhode Island employers to navigate. Our professionals at ASN will be staying on top of the developments and how the new legislation will impact our clients. We are ready to advise you as to the development of new polices and procedures to cope with this changing landscape. If you have any questions or concerns, please give us a call. We would love to speak with you.