Montana - Considerations for Marijuana in the Workplace

Last Update on April 18, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

Employer Concerns – Significant to Review

Regarding medical marijuana, employers are not required to accommodate use of marijuana even if it was legally recommended and used outside of work. (Refer to Lance Carlson v. Charter Communication, Inc.)
Although in medical marijuana law, employers are not specifically mentioned, the law addresses licensing boards and the Montana Department of Labor and Industry stating that a legal medical marijuana patient cannot be penalized, denied any right or privilege for their status as a cardholder, use, or possession unless their use hinders their job-related performance and then he or she may receive penalties or discipline.
(Montana CI-118 and I-190) With Montana CI-118, Montana has passed a constitutional amendment to change the legal age for marijuana to 21. Montana I-190 outlines the system for legalized recreational marijuana.
This bill does not appear to
- require accommodation of recreational marijuana use at work.
- restrict an employer from prohibiting an employee from working while under the influence
- permit an employer to refuse to hire an applicant based on a pre-employment test positive for marijuana.
- prohibit an employer from taking adverse action against an applicant or employee for a violation of a drug testing policy, or
- prohibit an employer from disciplining an employee for working while under the influence.
Montana’s law (MCA 16-12—108(4)(c)) does not make it clear whether an employer can refuse to hire or take adverse action based on a positive test for marijuana if their policy so designates. The law does not prohibit an employer from declining to hire, discharging, disciplining, or otherwise taking adverse employment against an individual because of the individual’s violation of a workplace drug policy or intoxication by marijuana or marijuana products while working.
However, Montana state law (MCA 39-2-313(3)) now defines marijuana as a “lawful product.” Employers may not refuse to hire a worker because the individual uses marijuana during nonworking hours. In addition, employers may not discriminate in the compensation or promotion of an employee because the worker uses marijuana. Carve-outs for that include safety-sensitive positions.
The recreational marijuana law does not permit a cause of action against an employer under the State’s wrongful discharge or freedom from discrimination law.
Montana has drug testing law with detailed restrictions with which an employer needs to comply if they are going to do drug testing, including definitions around subjected employees, policy, notice and testing requirements, training and education requirements, and more.

Testing

Montana has drug testing law with detailed restrictions with which an employer needs to comply if they are going to do drug testing, including definitions around subjected employees, policy, notice and testing requirements, training and education requirements, and more.

Hiring/Termination

See Significant above.

Discipline

See Significant above.

Use/Possession

Smoking is permitted.
Consumption must be in private.
Operating a vehicle, aircraft, or boat while under the influence is illegal.
A driver who is shown to have reached or surpassed THC 5/ng is considered marijuana-impaired under law.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)

It is illegal to operate a vehicle with blood levels of 5 ng/ml of THC or more. However, with evidence of impairment, a person can be convicted of DUI with less than that amount.
Montana has drug testing law with detailed restrictions with which an employer needs to comply if they are going to do drug testing, including definitions around subjected employees, policy, notice and testing requirements, training and education requirements, and more
Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)

Montana Code Ann. 50-46-301 to 320 – Medical marijuana law
Lance Carlson v. Charter Communication, Inc. – Medical marijuana accommodation related
Montana I-190 – Recreational marijuana
Montana Code Ann. 39-2-205 to 211 – Drug testing law
Montana Code Annotated 61-8-401 – Drug driving related
Mont. Code Ann. 39-51-2303 – Unemployment related
Mont. Code Ann. 39-71-407 (5), (7) – Workers’ compensation related

Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

Drug Testing in Montana

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Drug Testing Laws for Montana

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Montana - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

Employer Concerns – Significant to Review

Testing

Hiring/Termination

Discipline

Use/Possession

Other Impacting Laws

Sources

Drug Testing in Montana

Drug Testing Laws for Montana

Other States Marijuana Considerations

Set Up An Employer Account

Join Our Collection Site Network

Drug Testing Information

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Montana - Considerations for Marijuana in the Workplace

MedicalMarijuana Law:

RecreationalMarijuana Law:

Employer Concerns – Significant to Review

Testing

Hiring/Termination

Discipline

Use/Possession

Other Impacting Laws

Sources

Drug Testing in Montana

Drug Testing Laws for Montana

Other States Marijuana Considerations

Set Up An Employer Account

Join Our Collection Site Network

Drug Testing Information

Navigation

Medical
Marijuana Law:

Recreational
Marijuana Law: