Providence, R.I. (May 25, 2022) -  After a decade of discussion and deliberation, the Rhode Island General Assembly finally voted to legalize cannabis for adult recreational use. On May 25, 2022, Rhode Island Governor Daniel McKee signed into law the comprehensive legalization bill known as the Rhode Island Cannabis Act (the Act).

Beginning on December 1, 2022, adults ages 21 and older will be able to purchase and possess up to one ounce of cannabis. They also will be able to grow small amounts of cannabis at home. Tens of thousands of Rhode Islanders will also have their cannabis possession convictions expunged automatically.

Without a doubt, the legalization of cannabis for adult recreational use will have far-reaching implications for members of the business community. The following Q&A is intended to address many of the most pressing questions and concerns that employers and human resource professionals have about how legalization will play out in the Ocean State.

Will employees be permitted to smoke or vaporize cannabis in the workplace?

No. In 2005, Rhode Island passed an indoor smoking ban that prohibits smoking in all enclosed places within the state, including workplaces. The Act prohibits the smoking or vaporizing of cannabis in any place where smoking or vaporizing tobacco is already prohibited by federal or state law or local ordinance.

What about medical cannabis cardholders? Will they permitted to use cannabis in the workplace?

No. The Act provides that employers are not required to accommodate the medical use of cannabis in any workplace.

Our employees have been working remotely from home since March 2020. Will we be required to accommodate the use of cannabis in their home offices during work hours?

No. One of the concerns raised by the business community is that the term "workplace" has expanded dramatically in response to the COVID-19 pandemic. Many Rhode Islanders are now working remotely from home for some or all of their workweek. In response to these concerns, the Act now provides that employers are not required to accommodate the use of cannabis "in any . . . location while an employee is performing work, including remote work." (Emphasis added.)

Can employees bring cannabis that they have purchased legally into the workplace?

No. The Act provides that employers may prohibit the possession of cannabis in any workplace.

Now that cannabis has been legalized for adult recreational use, can we still enforce our workplace drug policies?

Yes. Employers may continue to implement and enforce workplace drug policies prohibiting the possession and use of cannabis in the workplace and prohibiting employees from performing work while "under the influence."

Nothing contained in the Rhode Island Cannabis Act prohibits an employer "from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's violation of a workplace drug policy or because that person was working under the influence of cannabis."

One of our employees operates a forklift. Will "safety-sensitive" employees like this be allowed to engage in the private, off-duty use of cannabis?

Yes—provided they do not operate or navigate a motorized vehicle and are not in actual physical control of a motorized vehicle while "under the influence" of cannabis. The same rules apply to employees who operate aircraft and motorboats.

One of the major concerns raised by the business community during the fight over legalization is that the legal standard of "under the influence" is not defined in the Act. Moreover, the Act specifically states that a person is not considered to be "under the influence" solely for having cannabis metabolites in their system.

In the absence of clear parameters surrounding the definition of "under the influence," Rhode Island employers—particularly those with employees performing "safety-sensitive" job duties—are strongly encouraged to provide their frontline managers and supervisors with reasonable suspicion training. Managers and supervisors must be trained to identify the indicia that an employee may be under the influence of cannabis and potentially impaired on the job.

Since Rhode Island law prohibits employers from using random drug screens, is there anything else that employers can do to ensure that "safety-sensitive" employees are reporting to work fit for duty?

Yes. If an employee's job duties involve work that is "hazardous, dangerous, or essential to public welfare and safety," then the employer may implement a workplace policy that prohibits the use or consumption of cannabis within 24 hours prior to a scheduled work shift or assignment. The Act includes a non-exhaustive list of occupations that meet this standard. The list includes operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses, or public transportation; use of explosives; public safety/first responder jobs; and emergency medical and surgical personnel.

Our employees work in an office setting and do not perform any "safety-sensitive" job duties. Will we be able to impose disciplinary action if they use legal cannabis before an assigned shift and report for duty while "high"?

Yes. Under the Act, employers cannot impose disciplinary action against an employee solely for their private, lawful, off-duty use of cannabis. However, make no mistake—employers can discipline or even terminate an employee for reporting to work or working "under the influence" of cannabis. Once again, reasonable suspicion training is essential for managers to identify the indicia that an employee may be working "under the influence" of cannabis and potentially impaired on the job.

We are a federal contractor subject to the requirements of the federal Drug-Free Workplace Act of 1988. We are required to certify that we provide a drug-free workplace as a pre-condition of receiving federal contracts. Are we now prohibited from disciplining our employees for their private, off-duty use of cannabis?

No. The Act makes clear that federal contractors may impose disciplinary action for the private, off-duty use of cannabis if their failure to take such action "would cause the employer to lose a monetary or licensing related benefit . . . ."

Now that cannabis has been legalized for adult recreational use, must our group health and workers' compensation insurance carriers cover it for employees who use cannabis medicinally?

No. The Act provides that group health insurance carriers and workers' compensation insurance carriers are not required to reimburse patients for the costs associated with their medical use of cannabis.

Our employees are required to have professional licensure from a Rhode Island state government agency to engage in their occupation. Will our employees be permitted to engage in the private, off-duty use of marijuana?

Yes—provided they do not undertake any act while "under the influence" of cannabis when doing so would constitute negligence or professional malpractice. Just because members of a licensed profession will be able to purchase and possess cannabis legally does not mean that they are exempt from disciplinary action by any state or local licensing authority.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.