Drug Free Workforces Won’t Fly In New York Anymore: What Employers Need to Know about the New Cannabis Law

By Brandon Vogel

Drug Free Workforces Won’t Fly In New York Anymore: What Employers Need to Know about the New Cannabis Law

Cannabis Tax and Section 280E_675

Employers cannot commit to “drug free workforces” under the New York laws on cannabis but they can prohibit employees from using marijuana on work time and discipline those who do.

These were a few of the facts revealed on the CLE webinar,

With the passage of the Marijuana Regulation and Taxation Act (MRTA) permitting adults 21 and over to purchase marijuana for recreational use, questions have arisen about what employees and employers can and cannot do.

Panelists at the CLE webinar “Career High: New York’s Marijuana Regulation Act & Its Impact On The Public Sector” looked at the changing legal landscape for marijuana use, symptoms of impairment that employers should know and potential problems that employers might face.

The case for cannabis

Thirty-five states have legalized cannabis for medical use or for what’s called all adult purposes. Sixteen of those states have legalized marijuana for recreational use; New York and Connecticut were the most recent.

Geoffrey A. Mort (Kraus & Zuchlewski) said the legal landscape has changed quickly due in large part to advances in science.

“We now know, for example, with some certainty that cannabis is not addictive nor is it the so-called gateway drug that many people have long suggested it is,” said Mort. “More importantly, though, we also know that it now has a number of important and valuable medical applications.”

As an example, epileptics who use medical marijuana often have very few seizures; some have none. Cannabis for pain relief is now widely accepted by the medical community and that has changed the perception of marijuana as a dangerous drug.

Mort said that the length of time marijuana stays in a person’s bloodstream depends on how often the individual consumes the drug, how much is used at a time and body fat.

Drug testing in both the public and the private sectors continues to persist. Mort surmised that it is largely due to an employer’s personal objection to drug use, specifically cannabis use.

Can an employee in New York be fired for testing positive for cannabis? While there is no caselaw yet, Mort ventures the answer is probably no.

The New York Legal Activities Law Section of Labor Law prohibits employers from discriminating against employees because of their lawful off duty recreational activities.

Exceptions

Christopher J. Harrigan (Barclay Damon) clarified that there are some exceptions to the MRTA.

Employers can continue to take disciplinary action against employees who engage in off duty cannabis use where:

The employer’s actions were required by state or federal statute, regulation, ordinance or other state/federal governmental mandate; or the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

An example is a truck driver, due to interstate commerce and federal regulations, where testing is required and where discipline and discharge may also be required in the event of a positive test for THC.

“It is important to note that these limited federal safe harbors do not allow employers to discriminate against legal cannabis users solely because cannabis remains illegal under federal law,” Harrigan said.

Harrigan cautions employers who want to maintain a drug free workplace and plan to discipline and discharge in the events of recreational use that “That’s not going to work in New York anymore. You cannot rely solely on the fact that it’s illegal under federal law. That doesn’t fly anymore.”

Legally mandated drug testing for marijuana can continue under Department of Transportation, Department of Defense or nuclear regulatory positions.

What To Look For

Harrigan noted that the MRTA does not define “specific articulable symptoms.

Objective observations such as cannabis odor, bloodshot eyes, poor coordination, slow responses, “the hallmarks of being high” will likely constitute such “specific articulable symptoms.”  It remains to be seen whether New York issues guidance or further rules/regulations to confirm this standard.

Harrigan developed a reasonable suspicion checklist to ascertain symptoms. It includes a series of questions that can get the impaired to admit to being high or where there’s enough of a record that the employer can discipline and discharge the employee without fear of being in violation of the recreational activities law. Mort noted that bloodshot eyes could be the result of dust in the air.

An upcoming challenge, Harrigan said, is that marijuana comes in multiple forms now, such as gummies or chocolates.

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