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Posted by & filed under News.

By Jascha K. Clark

On February 28, 2020, Governor Gary Herbert signed into law a bill that contained dozens of amendments to the Utah Medical Cannabis Act (the “Act”), including a clarification specifically relevant to private employers.

As noted in a prior piece, the Act only prohibits discrimination with regard to public employment. Utah Code Ann. § 26-61a-111(2)(a), (c) (requiring public employers to treat “an employee’s [legal] use of medical cannabis . . . in the same way [they] treat employee use of opioids and opiates” except where doing so “would jeopardize federal funding for the employee’s position, or if the employee’s position is dependent on a license that is subject to federal regulations.”). The February 28 amendments added that “nothing in this section [prohibiting discrimination by public employers] requires a private employer to accommodate the use of medical cannabis or affects the ability of a private employer to have policies restricting the use of medical cannabis by applicants or employees.” Utah Code Ann. § 26-61a-111(4).

This amendment strongly supports our prior conclusion that “it appears unlikely that Utah courts will, as a result of the Act, require private employers to change their drug testing policies and/or accommodate the use of medical cannabis.”

Although now more unlikely than ever, it still remains to be seen whether Utah courts will require accommodation of medical marijuana use under either the Americans with Disabilities Act or the disability protection provisions of the Utah Antidiscrimination Act. See Utah Code Ann. § 26-61a-104(2)(a)-(p) (listing qualifying conditions for medical cannabis card). For employers seeking a conservative approach, we continue to recommend at least engaging in an interactive process with the applicant or employee to evaluate other potential treatments (besides medical cannabis), such as different medications, before making employment decisions.

If you have a question about any of the issues raised by Utah’s cannabis laws, including regarding your company’s drug testing policy or a requested accommodation, you should consult legal counsel. The lawyers in Ray Quinney & Nebeker’s Employment and Cannabis Law practice groups would be happy to assist you with any questions you may have.

*This update features selected developments in the law. It should not be relied upon for substantive legal advice.*

Jascha Clark is a member of the Firm’s Employment and Labor Law and Litigation Sections. He has extensive litigation experience and advises large and small companies on a wide range of business and employment issues, including hiring, managing, and terminating employees in compliance with federal, state, and local laws.