On August 1, 2022, Act No. 651, the new Public Employer Medical Marijuana Law, went into effect and provides more protections to employees and applicants with a proper recommendation for marijuana, but also creates more questions for public employers across the State. There are a number of issues that are not addressed in the law and will be left to Louisiana courts to resolve, including what employers are actually covered, how this law will impact worker’s compensation insurance agreements, how vicarious liability for injuries caused to others by protected employees will proceed, and the parameters around which covered employers can test employees and applicants and what results can come from any positive tests.
Regarding coverage under the law, the language of the new law specifically defines covered employers as “State employers,” which supports coverage for only employees of Louisiana government. However, the section of the Revised Statutes in which the new law is added, “Public Employee Drug Testing,” uses the term “public employer” to include both State employers and any local governmental subdivision that has adopted an ordinance providing that the subdivision is a public employer for purposes of the statute. So, although the language of the statute supports that the statute only applies to Louisiana State employees, the ordinances of local municipalities need to be checked to confirm that the municipality has not recognized itself as a “public employer” for purposes of this section of the law, because a court might interpret this new law broadly to be read in unison with the other statutes in the same section of the Revised Statutes. If that broad interpretation occurs, then any locality with such an ordinance may be covered depending on the language of the local ordinance.
Now that the law is effective, each municipality’s drug policy and drug testing provisions of their handbook need to be carefully reviewed to determine how this new law might impact those provisions. Because the law has been untested in the courts, any public employer facing an issue under this law will face complex legal issues that will require creative solutions to ensure it makes the best decision for the municipality and its constituents. Please feel free to call if you need assistance.