Montana: New Bills Pave the Way for Recreational Marijuana Use


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Last November, Montana voted to legalize recreational marijuana. Two new bills are now being implemented to allow adults to legally possess and recreationally use marijuana. These new bills incorporate some protections for employees who use marijuana in compliance with state law outside of the workplace, and also addresses workplace issues related to marijuana use.

HB 655 goes into effect on July 1, 2021 and disqualifies an individual from workers’ compensation benefits if they fail or refuse to take a drug test in violation of an employer’s written workplace drug policy, except for medical marijuana users.

HB 701, effective January 1, 2022, amends several pieces of existing legislation. Key changes for employers include the following:

  • Marijuana will be added to Montana’s definition of “lawful products.” Employers may not take adverse action against employees who lawfully use marijuana while off-duty, unless subject to specific exceptions in the law. Exceptions include where the employer is a non-profit whose primary purpose discourages use of marijuana, or for any employer employing an individual whose off-duty use:
    • affects employees’ ability to perform job-related responsibilities or the safety of others;
    • conflicts with bona fide occupational qualifications reasonably tied to the employees’ job duties; or
    • violates a personal service contract with an employer and the nature of the services provided authorizes the employer to limit the use of marijuana or marijuana products.
  • Employers may still prohibit marijuana use or possession during work hours, on the work premises, or while using work equipment or other property.
  • Driving while under the influence or impaired is still prohibited.

Employers make still conduct pre-employment drug testing, but may not reject or take adverse action against an applicant based solely on testing positive for marijuana.

Action Items

  1. Have drug-free workplace policies updated.
  2. Revise pre-employment screening procedures.
  3. Train appropriate personnel on pre-employment drug testing requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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