The Wisconsin legislature appears poised to reject a proposal to create a medical marijuana program this legislative session, just a month after the Senate shot down a proposal to legalize marijuana for recreational use. Although Wisconsin’s neighbors Michigan, Illinois, and Minnesota have decriminalized marijuana for at least some uses, the Wisconsin legislature has traditionally been resistant to marijuana reform and lawmakers told Wisconsin Public Radio that they do not expect the latest measure to survive. But marijuana products proliferate in the state in forms legal, illegal, and ambiguous. The often-murky legal status of various products implicates a number of important legal issues for Wisconsin employers, including disability accommodation, drug testing, and workplace health and safety. In this very dynamic area of law where new state and local rules are popping up like weeds, employers should consider the overlapping network of federal, state, and local regulations that vary according to the location of an increasingly mobile workforce.

“It was legal where I did it!”

Wisconsinites have proven more than willing to cross the border to neighboring states for a visit to a retail outlet. The practice is so widespread that last year Wisconsin Governor Tony Evers quipped in a video posted to Twitter, “Frankly I’m kind of tired of talking to the governor from Illinois. Whenever I get with him, he thanks me for having Wisconsinites cross the border to buy marijuana.” Although marijuana is illegal to use or possess at the federal level under the Controlled Substances Act, the impact of decriminalization by nearby states has wafted right past state boundaries. As a result, employers may be faced with scenarios in which an employee spends the weekend in Chicago, comes back to work on Monday, and tests positive on a random drug screen.

Since the Wisconsin Fair Employment Act prohibits discrimination on the basis of an employee’s use or nonuse of lawful products off the employer's premises during nonworking hours, is an employer required to tolerate drug use during non-working hours, as long as the employees bother to take a road trip across state lines? No; a statutory exception to the non-discrimination provision provides that the use of lawful products is not protected if it conflicts with any federal law. The Wisconsin Department of Workforce Development has taken the position that Wisconsin employers have the right to terminate an employee for use of marijuana products that are unlawful under federal law. However, any drug-testing program should still be evaluated for compliance with state wage and hour law (including Wisconsin’s law prohibiting employers from requiring employees or applicants to pay the cost of a required medical examination, including drug testing), the Americans with Disabilities Act, privacy regulations, Department of Transportation or industry-specific regulations, and the federal and state Drug-Free Workplace Act.

It’s not just brownies anymore

Cannabidiol (CBD) products, including gummies, oils, creams, chocolates, and even beer, proliferate in Wisconsin. Under the Agricultural Act of 2018 (sometimes called the “2018 Farm Bill”), hemp and hemp products (including CBD oil extracted from hemp plants) are not controlled substances, provided that they are grown pursuant to a federal or state-approved plan and contain less than .3% delta-9-THC, the main cannabinoid responsible for the “high” of marijuana. The 2018 law followed the Agricultural Act of 2014 (“2014 Farm Bill”), which permitted hemp pilot projects, including one in Wisconsin. Last month, Wisconsin turned its state-approved plan over to the USDA, becoming one of the first states to do so. Because CBD products are legal at the federal level, Wisconsin employers should craft their drug policies in light of Wisconsin law protecting employee off-work use of lawful products while also ensuring compliance with federal regulations and communicating to workers that the use of lawful CBD products will not excuse a positive drug test for marijuana.

Delta-8: A legal high?

Although federal law limits the presence of delta-9-THC to just .3% of legal CBD products, it does not restrict the presence of delta-8-THC, a cannabinoid cousin to delta-9 that can also produce a “high.” Although delta-8 is present in hemp plants only in very small quantities, CBD can be synthetically converted to delta-8. States like Wisconsin that have legal hemp programs but prohibit use and possession of marijuana have seen a rapid increase in the sale and use of delta-8. The legal status of delta-8 is uncertain although last fall the DEA signaled in an advice letter that it regards delta-8 as exempted from the Controlled Substances Act pursuant to the 2018 Farm Bill.  At the same time, the Food and Drug Administration has warned against the effects of delta-8-THC, a common predicate to agency regulation.  Although 18 states have restricted or banned delta-8 in some way as of December 2021, including marijuana-friendly states like Colorado and Washington, at present Wisconsin is not considering any similar legislation—and the substance is being openly sold in mints, vape pens, food, and beauty products in stores across Wisconsin. Delta-8 poses a challenge for employers because it produces the same byproducts as those measured by screening drug tests for the federally banned delta-8-THC, so employees may test positive after using products openly sold at the corner store, although they should test negative on a confirmatory test using gas chromatography/mass spectroscopy (GC/MS).

Absenteeism, industrial accidents, and injuries

Recognizing the signs of impairment is particularly important because operational, health and safety risks also inhere to delta-8. The United States National Institute on Drug Abuse, a department of the National Institutes of Health, published research from the Journal of the American Medical Association demonstrating that employees who tested positive for marijuana on pre-employment drug screenings went on to have 55% more industrial accidents, 85% more injuries, and 75% greater absenteeism during employment as compared to those who tested negative. Delta-8 is of particular concern because it is a synthetic unregulated product; the federal Food and Drug Administration has cautioned that adverse effects associated with consumption of delta-8 may include vomiting, hallucinations, trouble standing, and even loss of consciousness. Workplace safety is a key issue for all employers, and delta-8 presents unique safety challenges. Particularly for employers who have workers in safety-sensitive positions in the healthcare, manufacturing, construction, transportation, utilities, and warehousing industries, delta-8 use by employees poses significant workplace safety risks. Because delta-8 users may come to work impaired after using delta-8 but won’t fail a drug test, managers should be trained to recognize the signs of impairment and address them from a behavior and performance perspective, instead of relying solely on a drug test.

Employer Take-Aways

Employers should closely review their existing workplace drug policies and make adjustment to their internal policies and procedures as appropriate. General strategies for compliance include:

• Auditing existing drug and alcohol policies, drug testing policies, and workplace safety policies.
• Educating employees and managers on the risks and symptoms of using unregulated cannabis products.
• Tracking legal developments in jurisdictions in which employers recruit or employ workers.
• Working with counsel to ensure drug-free workplace policies analyze the interplay between the evolving cannabis laws and other areas of law including discrimination, wage and hour, and regulatory compliance.