2020 brought about many changes to drug testing, including the passing of recreational cannabis use in Montana via ballot initiative. In May of 2021, Governor Gianforte signed two bills into law clarifying the legalization of marijuana in Montana as well the related employer impacts.[1] Both of the new laws have employer impact. The laws are generally effective January 1, 2022 unless noted otherwise in this article.

Under these new laws, employers are generally prohibited from refusing to employ or taking adverse employment action against an individual with respect to compensation, promotion, or the terms of employment because of that individuals lawful use of cannabis off work premises and during non-working hours. Moreover, employers are prohibited from taking adverse employment action if the person who tested positive presents a reasonable explanation or medical opinion indicating that they were not under the influence while on work premises or during work hours.

That said, employers are not required to accommodate any cannabis use during work hours or on work premises and are not obligated to accommodate lawful use when that use impact’s an individual’s ability to perform job-related responsibilities or conflicts with bona fide occupational qualifications, such as federal DOT requirements. Employers can also decline to hire or take adverse employment action when acting on a good faith belief that an employee is violating workplace marijuana use policy or impaired at work. Employers may also maintain a workplace drug policy prohibiting use and impairment on work premises or during work hours.

The new laws also address discharges from the workplace due to misconduct, stating that an individual must be disqualified for benefits after being discharged for violating an employer’s written workplace drug policy for failing to pass or refusing to take a drug test if said testing complies with federal drug testing statutes and administrative regulations that are applicable to private employers. Marijuana use is excluded from this portion of the law, however. This portion of the new laws is effective July 1, 2021.

Although these two laws refine Montana’s ballot initiative, there is still much to be done by the State’s regulatory bodies and we anticipate follow-up guidance through the remainder of 2021.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness

[1] Information contained herein courtesy of Current Consulting and the law: https://leg.mt.gov/bills/2021/HB0699/HB0655_1.pdf (HB 655.1) https://leg.mt.gov/bills/2021/billpdf/HB0701.pdf (HB 701)