Legal adult-use Cannabis poses challenges to employers
What is deemed "off-duty" and how do you tell if someone might be impaired on the clock? Employers are learning fast that some answers are complicated.
Employers in New York have a lot of questions now that adult-use cannabis is legal, and it will likely require internal reviews of company policies to ensure they are clear, but that they also comply with changes in labor law.
About eight of out 10 employers that responded to a National Safety Council survey in 2021 reported that they had concerns about recreational cannabis and other related products.
However, that same survey found that only one-third of the employers had identified cannabis as a primary concern and less than half of the employers even had written policies specific to cannabis.
“We get questions pretty much on a daily basis now about this topic,” said Liz Warren, executive vice president for Employer Services Corporation, which provides human resources and other services to businesses. “So, the first thing that we do is we talk to the particular company about what is their policy in their handbook because that’s where you have to start.”
For example, if drug testing is a condition of employment, employers governed by state law will have to remove cannabis from the list of illegal substances. That’s because state lawmakers amended the labor law to prohibit employers from acting against employees for legal conduct off-duty, attorneys said.
But what is deemed “off-duty”? And what about impairment on the job?
Can you use cannabis on your lunch break?
Lisa Casa, a Long Island attorney who specializes in labor law, said that some cannabis-related workplace questions have been resolved – such as whether a lunch break could be considered off-duty – but not all.
“The Department of Labor has clarified: lunch break is still you’re on duty,” Casa said. “So, people can’t do it. The other restriction is, although you can do as you want in your own home, you can’t come to work impaired.”
The question of “what is impaired?” may be one of the tougher ones, though. Unlike for alcohol, the state does not have a blood-alcohol limit for cannabis.
David Holland, an attorney who specializes in cannabis-related workplace cases, said that employers cannot use a positive drug test for cannabis as proof of impairment because the metabolites can linger in the body for as long as a month.
Rather, employers will likely have to consider a variety of factors before making any claims of employees impaired on the job.
“Unless somebody comes into work either carrying cannabis or otherwise are showing articulable and visible signs of impairment, then an employer is not free to do what they want,” said Holland, who was the attorney for a Buffalo firefighter who got his job back after the department fired him for medical marijuana use.
For example, the impairment must lessen the worker’s performance, too, Holland said, or interfere with a safe and healthy workplace. And smell of cannabis alone is not proof of impairment, he added. Neither is falling asleep at work.
“Red eyes may be attributable to a variety of factors,” he said. “So, what the guidance says and where the law shakes out is if somebody is using heavy equipment in a reckless and unsafe manner, that would be grounds to take action.”
As a result, Casa said it will be very difficult for employers to interpret whether an employee is impaired by cannabis on the job.
“So, that’s another layer,” she said. “How do you figure out impairment?”
Employees do use cannabis while at work, the NSC survey found.
The NSC survey of 500 employers and 1,000 employees in 2021 found that one-third of employees reported they observed cannabis use during work hours. In addition, about half the employees surveyed indicated that they are cannabis users.
Katie Mueller, a senior program manager for NSC, said states such as New York can learn some lessons from other states that have years more experience of legalized adult-use cannabis under their belts.
Not being able to drug test for cannabis will create challenges for some employers, Mueller said. She suggested employers designate “safety sensitive” jobs from other work performed by employees.
“And then if they have an employee who for whatever reason is using cannabis, they have a position to move that employee to if they so choose,” Mueller said.
Differences in public vs. private employers
Federal law still considers marijuana an illegal substance, which does create some challenges for federal employees and those whose work is regulated by federal laws.
As a result, Casa said federal employers can still restrict legal cannabis use, unlike private employers which are governed by state law.
“People that have like commercial driver’s licenses and things like that that are regulated particularly, they’re issued by the federal government and Department of Transportation,” Holland said. “They have an obligation to drug test because it’s still federally illegal and so therefore discipline could be taken against them” for partaking in legal adult-use cannabis.
State law does not include any first responder or public safety exemptions with regard of who can and cannot be a consumer of adult-use cannabis. But Holland said state guidance has a “subjective and objective test” which is whether that employee is being unsafe or unhealthy while at work.
“They need to use extra caution should they consume outside the workplace as they’re allowed to do,” Holland said. “It’s not an easy line for them to walk, I imagine. But for a lot of them, they have been doing these things all along and we’ll see, I think that they performed in their duties just as well as people expected them to. So, I don’t think you’re going to see a tremendous sea change in the qualitative work that people do.”
Those who have medical licenses for cannabis are deemed to have disabilities that affords them even more protections under the Compassionate Care Act, attorneys said.
Employers must accommodate medical patients like any other disability, but even then, there are limitations, Casa said.
“You don’t have to tolerate impairment,” Casa said. “So, while a medical user may need to use medical marijuana to manage their condition, manage their pain, they still have to make sure they’re coming to work without that impairment. And that is the line: it’s not always so easy to tell what is an impairment or what is a restriction.”
Bottomline, attorneys cautioned employers from making kneejerk decisions about perceived cannabis impairment as case law on this subject continues to evolve.
“They really got to be shown to be unsafe and incapable of performing their duties of their job at that given moment before it can be a viable complaint by an employer to take action against an employee,” Holland said.