Marijuana in the Workplace, 0120 SCBJ, SC Lawyer, January 2020, #28

• Author: By William Floyd and Denver Smith
• Position: Vol. 31 Issue 4 Pg. 28

Marijuana in the Workplace

Vol. 31 Issue 4 Pg. 28

South Carolina BAR Journal

January, 2020

By William Floyd and Denver Smith

Introduction

For many years, South Carolina employers have prohibited drugs in the workplace and tested applicants and employees for illegal substances, such as marijuana. Recently, Congress and many states have enacted new laws regarding marijuana, covering everything from cultivation to consumption, for both medical and recreational reasons. Many states have legalized marijuana, while others - like South Carolina - have taken a more conservative approach and allowed the use of cannabidiol (CBD) products derived from industrial hemp. Employers in South Carolina must consider how recent changes in the law will impact them and recognize that more changes are likely—including the possibility that medical marijuana may soon become legal.

Federal laws regarding marijuana and hemp

According to federal law, marijuana is illegal. The Controlled Substances Act categorizes marijuana as a Schedule I substance, defined as a substance with "a high potential for dependency and no accepted medical use."¹ Nevertheless, there is a growing conflict between federal law and those states that have legalized marijuana for medical or recreational purposes. Thirty-three states and the District of Columbia have legalized marijuana for medical use.² In order to obtain medical marijuana in these states, a licensed physician must issue the patient a medical marijuana certificate, which enables access to local dispensaries. Eleven states have legalized marijuana for recreational use. Illinois recently became the latest state to fully legalize marijuana, which allows consumers 21 years or older to enter local dispensaries at will.³

South Carolina laws regarding marijuana and hemp

Marijuana and hemp are derived from the same plant species, Cannabis sativa L. While the plants look very similar, the hemp variety of the plant contains only very low quantities of the psychoactive ingredient in cannabis, delta-9-tetrahydrocannabinol (THC). Accordingly, the legal definition of hemp focuses on the quantity of THC: less than 0.3% of THC currently classifies the plant as hemp (also known as industrial hemp). More than that amount of THC means the plant is marijuana and, therefore, illegal in South Carolina.

South Carolina has long prohibited the possession and use of marijuana. Pursuant to S.C. Code Ann. §44-53-1810, “marijuana” broadly covers all types of the marijuana plant, growing or not: its seeds, resin, and every related compound, manufacture, salt, derivative or mixture.⁴ Furthermore, possession of drug paraphernalia associated with marijuana use is also illegal.⁵ The code defines paraphernalia as any instrument, device, article, or contrivance used, designed for use, or intended for use in ingesting, smoking, administering, manufacturing, or preparing a controlled substance.⁶

The law clearly outlines the consequences for those who possess marijuana. Persons charged with possessing marijuana in the amount of one ounce or less may be permitted to enter the pretrial intervention program under the provisions of §17-22-10 through §17-22-160.⁷ For a second or subsequent offense, the offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than one year or fined not less than $200 nor more than $1,000, or both.⁸ Possession of over an ounce of marijuana constitutes a felony in South Carolina.⁹

On the other hand, growing and processing hemp is now legal in South Carolina. In 2018, President Donald Trump signed the Agricultural Improvement Act of 2018 into law, generally legalizing hemp subject to state regulation. This law reclassified hemp as an “agricultural commodity.”¹⁰

On March 8, 2019, Governor Henry McMaster signed the Hemp Farming Act into law, codified at S.C. Code §46-55-10 et seq. According to the statute, “industrial hemp” must not contain more than 0.3% of the chemical THC; otherwise, it falls beyond the statutory protections. Hemp can used for making paper and clothing and is the primary ingredient in many CBD-products.

There are hundreds of different chemical compounds within the marijuana plant.¹¹ The most well-known chemical, THC, causes the mood altering, psychological effects that most people associate with marijuana. CBD, on the other hand, is a non-psychoactive cannabinoid that provides similar results as THC, but without the “high.”

Medical marijuana in South Carolina

While both recreational and medical marijuana are illegal in South Carolina, that could potentially change next year. The legislature may vote on a bill, the South Carolina Compassionate Care Act, introduced by Senator Tom Davis. The bill would legalize medical marijuana and allow doctors to authorize marijuana to patients who meet specific requirements.¹²

Drug testing

South Carolina encourages but does not typically mandate drug testing in the workplace.¹³ Drug testing policies are generally left up to the discretion of the employer, however, there are some exceptions. For example, employers who require individuals to maintain a commercial driver’s license as a condition of employment are subject to various reporting requirements if an employee or applicant refuses to submit to...