Montana recently enacted changes to its law regarding recreational cannabis use in the state. The changes include the legalized sale and use of cannabis for recreational purposes. Legalized recreational cannabis brings changes including the amendment of the definition of “lawful product” found in MCA 39-2-313. “Lawful product” now includes food, beverages, tobacco, and marijuana. With certain exceptions, Montana employers are prohibited from refusing to employ or discriminating against individuals with respect to compensation, promotion, and the terms and conditions or privileges of employment-based upon the individual’s use of a “lawful product” at a location other than the employer’s premises during nonworking hours. The change to the law does not prohibit an employer from taking action against an employee for on-duty use of cannabis or incapacity.
Furthermore, the changes do not alter Montana’s already restrictive drug testing requirements (including restrictions related to who may be tested, when, why, and obligations to pay for such testing), but it does impact an employer’s ability to take action against employees and prospective employees regarding a positive cannabis test result.
The new protections related to off-duty cannabis use do not apply to certain situations, including where:
- use affects safety or job performance;
- use conflicts with a bona fide occupational qualification;
- an individual has a professional service contract with the employer and the unique nature of the services provided authorizes the employer to limit the use of products;
- the employer is a nonprofit organization with a primary purpose or objective of discouraging the use of cannabis.
Additionally, federal DOT requirements preempt state protections concerning cannabis use. Accordingly, employers subject to DOT rules should continue to impose those rules, including drug testing and restrictions related to usage as required.
Montana employers can find more information regarding Montana’s drug testing requirements and restrictions on the Montana Department of Labor & Industry Workforce Services Division site.
