Legal Marijuana and work: What to know about drug testing, policies and more

 Legal Marijuana and work: What to know about drug testing, policies and more

When New York lawmakers made recreational use of marijuana legal, they also made it illegal for most employers in the state to drug test workers for cannabis. 

Labor and employment attorneys say the new landscape is likely to cause confusion about what employers can require and what workers can expect.

With New York's first recreational cannabis shops open and more to come, attorneys say they expect to hear from employers unsure of how legalization impacts their workplace drug policies. 

Use and possession of marijuana  was legalized in March  2021 with the signing of the Marijuana Regulation and Taxation Act.   New Yorkers 21 and over may smoke or vape cannabis in most places where smoking tobacco is permitted, but use is prohibited in vehicles, whether moving or parked; in outdoor dining areas of restaurants, and in public parks.

The act also amended existing labor law to make it illegal for employers   — with a few exceptions —  to screen job candidates or employees for marijuana use.  Even if they suspect an employee is high on cannabis at work, they can't use a drug test to prove that.  

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The bottom line is that most employers "can’t test for marijuana anymore at all,” said Kathryn Russo, an employment attorney specializing in workplace drug issues with Jackson Lewis P.C. in Melville.

For some employers, she said, the new rules take away a tool they previously used to weed out potential workplace liabilities.

“It’s really the employers that have dangerous workplaces that are having the most trouble with it,” Russo said.

Here are answers to key questions about how the new law impacts bosses and workers:

Can my employer drug test me for cannabis use?
In most cases, no. Both private and public employers — including state and local government — are prohibited from screening for cannabis use.  

“So, to the extent that employers had a policy mandating testing, those policies need to be revisited or revamped,” said Jessica Baquet, labor and employment attorney and partner at Ruskin Moscou Faltischek Uniondale.

But workers in certain occupations and situations are still subject to testing.

Which workers can still be tested?
 Employees of the federal government, from U.S. Postal Service workers to FBI agents, may still be tested for cannabis use,  because the substance remains illegal under federal law.  

What about federal contractors? 
It depends.

“A lot of employers mistakenly think that just because they have a federal contract, they can treat marijuana like an illegal drug,” Russo said.

“I don’t think that’s correct unless they have a federal contract with a federal agency and it says you must do drug testing and we’re requiring you to drug test for marijuana,” she said. “Most federal contracts, they’re not that explicit.”

Who else can be tested?
Employers of commercial vehicle drivers and operators — such as tractor trailer drivers and school bus drivers, who hold commercial driver licenses — may still require those employees to refrain from cannabis use as a condition of employment and are required by the state and federal Department of Transportation to screen for tetrahydrocannabinol, or THC, the chemical compound in marijuana that gives users a high. 

Train operators for the MTA or LIRR  and commercial pilots  also fall under the jurisdiction of the federal Department of Transportation and are subject to cannabis screenings. Drivers for ride-hailing apps like Uber or Lyft are not, because their jobs don't require commercial licenses.

What about other potentially dangerous jobs, like construction or manufacturing?
Drug testing for cannabis use is off the table for other business owners, regardless of the safety conditions of the job.

Attorney Carol Sigmond said that presents a problem for employers like the construction firms she represents.

“They’re all looking at the same problem,” said Sigmond, partner at Greenspoon Marder in Manhattan. “They’ve got ... no way to separate the sheep from the goats.”

Some attorneys said they expect some employers, likely those with safety considerations, are going to misinterpret the rules or assume their workplace is exempt from the testing ban when it isn't.

“Many employers don’t understand the scope and breadth of employment law these days,” said Matthew Weinick, a labor attorney with Famighetti & Weinick in Melville, which represents workers in employment cases. “And being that this is particularly new… I think some employers aren’t going to be up on this and could certainly find themselves in trouble.”

"I think some employers aren’t going to be up on...
"I think some employers aren’t going to be up on this and could certainly find themselves in trouble,” says Matthew Weinick, a labor attorney with Famighetti & Weinick in Melville. Credit: Chris Ware

If I'm not subject to testing, can I use cannabis on my lunch break?
All employers can prohibit employees from using cannabis during work hours even if an employee may be on break or away from the worksite.  

Can I use marijuana at home while working remotely?
Employers can prohibit employees from using cannabis at home during work hours just as if they were working in person.

Can my employer take action if I have marijuana on my person or at my desk/locker at work?
Yes, employers can implement drug-free workplace policies and can discipline workers for possessing marijuana in the workplace, though the state rules don’t require them to.

Can my employer discipline me for cannabis use on my days off?
No, employers cannot take action against you for legally using recreational cannabis outside of work hours and off company property. 

However, commercial drivers and operators who fall into the category overseen by the federal Department of Transportation must basically refrain from use, even in their off hours, because they can be subject to random testing and marijuana can remain detectable in tests for days or even weeks after use.

Can an employer take disciplinary action against someone who is high at work?
Yes, though legal experts say employers should focus on whether or not an employee’s behavior is problematic or unsafe, rather than the reason behind it.

Can they use a drug test to determine if an employee is high at work?
No, drug tests cannot be used as proof that an employee is currently under the influence of cannabis, even if the test results show a positive result for THC. 

While blood alcohol levels can determine if someone is currently under the influence of alcohol, testing whether an individual is under the influence of cannabis has eluded researchers because of the unique chemical composition of THC, the main psychoactive compound in cannabis.

THC, unlike alcohol, is fat soluble, meaning it travels quickly from the blood to fat tissue.  Because of this chemical difference, levels of THC in the blood do not correlate with how much cannabis an individual has used, or how high they might be. Urine tests and hair follicle testing also can detect the presence of THC, but none of the tests currently in use can determine whether that presence means someone is high in the moment or used marijuana days or weeks earlier.   

Researchers at Massachusetts General Hospital produced a study in early 2022 looking at the possibility of using imaging technology known as functional near-infrared spectroscopy (fNIRS) to measure brain activity patterns linked to marijuana impairment.  

The study looked at the brain images of 169 cannabis users before and after ingesting THC or a placebo and found that those who reported intoxication showed increased neural activity from the prefrontal cortex detectable using fNIRS. Researchers said assessments were accurate 76% of the time.  

While the technology could be years from commercial use, researchers said it could feasibly be made inexpensive, lightweight and battery-powered for use in settings such as roadside law enforcement assessments.

What do the testing limitations mean for employers?
The state does not accept   a positive screening for cannabis as proof of impairment, even when taken together with what the state Department of Labor calls “articulable symptoms of impairment.”

What are considered "articulable symptoms of impairment"?
 DOL does not have an exhaustive list but describes them as “objectively observable indicators that the employee’s performance of the duties of their position are decreased or lessened.”

Examples of signs of impairment can vary depending on the job type, attorneys said, but could include actions such as unsafe operation of heavy machinery or otherwise erratic behavior. Slurred speech, bloodshot eyes, incoherent speech, or falling asleep at work could all be considered symptoms of impairment, depending on the situation, Russo said.

“Articulable just means you have to be able to describe what were the symptoms and signs of impairment that you saw,” she said. “You must be able to describe the behaviors that gave you a suspicion that this person could be under the influence of something.”

Without tests, how can an employer say for sure that a worker is high on the job?
Employers must determine if intervention or disciplinary actions are needed by observing employee behavior that might be unsafe or not in line with an employee’s normal level of productivity.

“They’re going to be forced to address conduct quickly without simply saying, ‘We’re going to drug test to make sure everybody is not intoxicated or high,”  said Domenique Camacho Moran, labor attorney and partner at Farrell Fritz in Uniondale. “Now, they are going to look at conduct and they are going to have to aggressively address employee conduct that is not safe.”

How should employers adjust their drug policies?
Labor attorneys advise employers to revisit their policies and update language so that it’s clear that cannabis use or possession at work is not allowed.

“I’ve been telling New York employers to make sure their policies are clear with regard to any conduct concerning marijuana,” Russo said. “Back in the old days employers would have a policy that would generally say you can’t use illegal drugs or alcohol at work. As soon as marijuana became legal in New York, it’s no longer covered by that language.

“Make sure your policy is crystal clear that use of marijuana at the workplace is prohibited, that you can’t use it during your lunch break or rest break. You have to spell it out for employees.”

"Make sure your policy is crystal clear that use of...
"Make sure your policy is crystal clear that use of marijuana at the workplace is prohibited," says attorney Kathryn Russo of Jackson Lewis P.C. in Melville. Credit: Newsday/Alejandra Villa Loarca

Are employers likely to see a big increase in marijuana use?
While legal to use, recreational cannabis has only been available for legal purchase in New York since late December when the state's first shop opened in Manhattan.  A second shop, also in Manhattan, opened last month. 

The state Cannabis Control Board last month voted to issue six more dispensary licenses for Long Island,  bringing the total to 13 locally, though it may be months before the first Long Island shop opens.

An August study in the journal Addiction suggests that people in states that legalized recreational marijuana use the drug 20% more frequently than those in states that haven't legalized it. A 2021 analysis by the Cato Institute, a libertarian think tank based in Washington D.C., found that legalization had little impact on usage rates. 

Even though employers can no longer screen for marijuana, experts said business owners still have the power to enforce drug use policies at their workplaces and should make those policies known to workers.

“The law is very clear that people can use cannabis on their own time,” said Esta Bigler, co-chair of the Cannabis Workforce Initiative and director of Cornell University’s ILR Labor & Employment Law Program.

“However, it is not to be used at the workplace, it is not to be brought into the workplace, or used during lunch breaks,” she said. “What you do on your own time is on your own time.”

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