Hawaii “Closes the Gap” on Medical Marijuana Law

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Recently, the Hawaii legislature passed a law to “close a gap” on the state’s medical marijuana law. While the stated intent of the medical marijuana law is to ensure a commercialized system for delivery of marijuana to seriously ill (and designated cardholders) individuals in Hawaii.

The new law (as signed by Governor Ige on July 14, 2015) amends a 15-year-old law that allowed for use of medicinal marijuana, but provided no legal way to obtain the drug.

The new law does not, however, modify existing Hawaii law on workplace use of marijuana, and continues to recognize the right of employers to maintain zero tolerance policies regarding use of the drug. In fact, the new law expressly disclaims that the use of medical marijuana may apply to use of medical marijuana in the workplace. Further, even in its medicinal form, marijuana remains a Schedule 1 drug in Hawaii (falling in the same category as heroin) under both Hawaii and federal law.

However, some labor counsel representing employees in Hawaii have argued that merely detecting marijuana during a drug test does not indicate “use” in the workplace (although there is no evidence these arguments have been made successfully), and neither the Hawaii Civil rights Commission nor an appellate court in Hawaii have decided the issue. Thus, while it is universally held by employers that a positive drug test will result in disallowed “use” in the workplace, this issue still remains open.

Thus, employers in the Aloha State should consult with employment counsel whenever an individual case of an employee positive use test for marijuana arises.

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