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Montana Becomes the Next State to Offer Protection for Lawful Off-Duty Use of Marijuana

On January 1, 2022, the previously passed Montana House Bill 701 (HB701) became effective, thus amending the state’s lawful off-duty use conduct statute to include the use of cannabis. Not only does HB701 outline the specific provisions regarding sale and possession, but it also details a number of safeguards that will prevent adverse action from being taken against an employee for proper, off-duty use of marijuana. Specifically, an employer is not permitted to refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer’s premises during non-working hours. However, that does not mean that an employer is allowed to work while impaired. HB701 clearly states that nothing would prevent an employer from “declining to hire, discharge, discipline, or otherwise take an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual’s violation of a workplace drug policy or intoxication by marijuana or marijuana products while working.”

Next Steps for Employers

Employers should consider carefully how HB701 will affect their existing drug testing procedures and hiring processes and review and/or update existing policies to ensure compliance. Employers that engage in drug testing should ensure that reasonable suspicion training is provided to supervisors/managers and/or human resources to ensure compliance.

HR Works, Inc., headquartered in Upsate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.