With the legalization of recreational marijuana in New York State employers might be wondering what they can tell employees who are suspected of using this drug.
Below are some of the parameters of the new legislation that will help to clear up what is permitted and what is NOT permitted for employers in addressing marijuana in the workplace.
What is “permitted use” of marijuana? In New York State, adults 21 and over will be able to possess up to three ounces of marijuana. In addition, adults 21 and over will be allowed to smoke marijuana in any public place where smoking is permitted. However, restrictions will be placed on smoking cannabis in restaurants, schools and the workplace. Eventually adults 21 and over will be able to cultivate six plants for personal use at home.
What are criminal regulations? The new law states that people with marijuana-related convictions that are no longer criminalized will have their records automatically expunged. Police will not be allowed to use the smell of marijuana to justify vehicle searches. However, driving while under the influence of marijuana will still be illegal.
Can employers still drug test for marijuana? How does the law impact the hiring process? Currently, even with the new legislation, there is no law that bans marijuana from drug testing in New York State as a whole. However, as of May, 2020, NYC banned most employers from requiring job applicants to submit to a marijuana drug test as a condition of employment with the exception of positions in law enforcement, transportation and construction. Now that marijuana is legal in New York City, it is possible that New York State could follow New York City’s lead and ban marijuana testing as well.
While employers might still be able to drug test for marijuana, an amendment of the New York Labor law explains that employers MAY NOT REFUSE to hire or employ, and may not discharge or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises. Therefore, despite it being legal for employers to test for marijuana, a positive marijuana test does not necessarily equate to workplace “impairment”. Workplace “impairment” WOULD permit an employer to take adverse action. The legislation defines being “impaired” by cannabis use as when an employee “manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”
It is important to note that while New York has legalized the possession and use of recreational marijuana, under federal law marijuana is still illegal. While the new law requires that employers follow state law when it comes to marijuana, it also provides that an employer is exempt from following the nondiscrimination provisions of the marijuana legislation IF complying would result in the loss of a federal contract or federal funding.
Can Employers control employee use of marijuana outside of working hours? Employers will still be able to ban it from the workplace with the understanding that being high on the job is a basis for termination of employment. However, while employers can prohibit the use or possession of marijuana on-site or during work hours, they cannot control what an employee does or does not do outside of working hours. So employers CANNOT prohibit employees from smoking pot outside of working hours, nor can they discriminate against employees who do so.
What kind of workplace policies can employers set? While some may welcome the scent of marijuana in the air at an outdoor concert, the same scent may not be as well received in the office or workplace. So employers should take advantage of the opportunity to update their employee handbooks and spell out the consequences of using marijuana during working hours – typically, in a manner that resembles the consequences of alcohol use. Similar to how an employer can set an alcohol-free policy where employees are not allowed to be intoxicated on the job, they can do the same for marijuana and prohibit being “impaired” by cannabis use. If an employer mandates a drug-free policy in their handbook, that means they are directing employees to keep it out of the workplace.
Employers should clearly communicate with employees to ensure they are aware of their employer’s drug-related policies, as well as train and advise managers on the policy changes.
New York’s approach to navigating the legalization of marijuana will be constantly evolving over the next several months and even years. If you have any questions about specific guidelines, situations or need a policy revision for your business please contact Portnoy, Messinger, Pearl & Associates, Inc. for assistance.