The North Dakota Legislature recently passed Senate Bill 2388 which, in part, amends Section 19-24.1-34 of the North Dakota Century Code clarifying actions employers may take in disciplining employees who are medical marijuana cardholders.
Prior to the bill’s passing, Section 19-24.1-34 stated that even if an employee is a medical marijuana cardholder, an employer may prohibit and discipline an employee for possessing marijuana in the workplace, consuming marijuana in the workplace, or for working while under the influence of marijuana. The difficulty with the statutory language is the lack of accurate testing available to determine whether someone is “under the influence” of marijuana at any specific time. To address this difficulty, Senate Bill 2388 clarifies that North Dakota employers may also prohibit and discipline an employee for “working with marijuana in the employee’s system.” This additional language broadens North Dakota employers’ protections in enforcing a drug-free workplace by clarifying that an employee may be subject to disciplinary action if they have marijuana in their system while at work, regardless of whether it can be established that the employee is under the influence and regardless of their medical marijuana cardholder status.
Senate Bill 2388 was signed by the Governor on April 11, 2023. The Bill was passed as an emergency measure and went into effect on April 12, 2023.
North Dakota employers should update their drug-free workplace and testing policies and procedures with regard to marijuana given this important change in the law. For more information, contact your Vogel Law Firm employment team.