Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996. This year, the Delaware General Assembly began experimenting with marijuana legislation. With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes.
S.B. 17 shares many common elements with medicinal marijuana legislation across the country. But there are some key differences that could have a major impact on Delaware employers. Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card. Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.
Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers.” There will be only one state licensed dispensary in each county. The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.
Unlike many other states’ medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.
This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test. Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.
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