Montana Governor Greg Gianforte recently signed two bills designed to establish the framework for recreational cannabis and to begin to implement Constitution Initiative 118 (CI-118) and Initiative 190 (I-190), which were adopted by vote in the November 2020 election.  Among other things, I-190 legalized the sale and possession of recreational marijuana, while CI-118 amended the state constitution to allow the legislature to set the stage for adults to lawfully possess and recreationally use marijuana.¹  The new laws will impact the workplace by protecting individuals who use marijuana in accordance with state law outside of work from adverse employment action and address other workplace issues related to marijuana use.

The first of these laws, known only as House Bill 655 (effective July 1, 2021), disqualifies an individual from workers’ compensation benefits if they fail or refuse to take a drug test in violation of an employer’s written workplace drug policy.  The law includes an exception for medical marijuana users.²

The second law (effective January 1, 2022) is the result of a voter initiative and amends several pieces of existing legislation and addresses the implementation of I-190.  Of particular importance to employers, the legislation will amend Montana’s definition of “lawful products” to  include marijuana.  As a result of this amendment, employers will be prohibited from taking adverse action against an employee for lawful use of marijuana when off-duty, subject to various exceptions in the law.

Employer Drug-Free Workplace Provisions Under Montana’s New Laws

These laws will permit employers to continue certain fundamental drug-free workplace rules, including the following:

• Workplace Use/Possession Can be Prohibited.  Employers may still prohibit marijuana use or possession during work hours, on employer premises and while using an employer’s equipment or other property.
• Driving Under the Influence or Impaired Not Permitted.  The statute specifically prohibits the operation of motor vehicles, trains, aircrafts, motorboats or other motorized forms of transport while under the influence of marijuana or marijuana products. 
• Recognized Limited Exceptions to Protections for Off-Duty Use.  Employers may continue to take adverse action against employees if their off-duty marijuana use:
  
  • affects employees’ ability to perform job-related employment responsibilities or the safety of other employees;
  • conflicts with a bona fide occupational qualification that is reasonably related to the employees’ employment; or
  • violates a personal service contract with an employer and the unique nature of the services provided authorizes the employer to limit the use of marijuana (or other products).
  • An employer can also take adverse action if the employer is a non-profit organization whose primary purpose or objective discourages the use of marijuana.
• Limited Safe Harbor for Established Policies and Agreements.  An employer may continue to prohibit the use of marijuana and take adverse action against marijuana users if the employer takes action based on the belief that its actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.

Prohibited Employer Conduct

While the new law protects an employer’s right to prohibit on-duty use or possession, the amendments make it clear that an employer’s ability to act based purely on a positive marijuana drug test is largely “up in smoke.”  While testing is not prohibited, employers cannot reject an applicant or take adverse action against an employee solely because they use or test positive for marijuana.  Absent one of the exceptions listed above, evidence of impairment while at work likely will be necessary to support an adverse employment action once the law takes effect. 

Managing for Compliance Under Montana’s New Laws

Montana employers should begin managing for compliance now.  Employers are encouraged to update existing drug-testing policies, as necessary.  Reminders of existing prohibitions against on-duty marijuana use and possession are both permitted and prudent under these new laws.  Employers subject to federal regulations (e.g., testing required by the Department of Transportation) should continue testing as mandated by federal law and seek guidance as necessary for state law compliance relating to its non-regulated workforce.