Getting into the Weeds of Marijuana Legalization: A Guide for Employers
Gov. Andrew Cuomo recently proposed New York legalize recreational adult-use marijuana, joining 16 states that have already done so. In recent years, New York has relaxed its marijuana laws, allowing medicinal marijuana use and decriminalizing possession of small amounts. The Governor’s proposal raises a variety of issues for employers, including testing, discipline, impairment, effects on job performance, and workers’ compensation to name a few.
Notably, the manufacture, distribution, dispensation, and possession of marijuana, a Schedule I controlled substance, remain illegal under federal law. Governor Cuomo’s proposal contemplates state and local taxes on marijuana sale, and is estimated to bring in $300 million in annual tax revenue. New York would become the third state to legalize recreational use marijuana by legislation rather than referendum.
If the current push succeeds, employers will be confronted with novel issues. States that have legalized recreational marijuana have taken a variety of approaches to related workplace issues. While Gov. Cuomo’s proposal contains few details, and no specific legislation has been proposed, other jurisdictions may predict how these issues will play out for New York employers. Although medicinal marijuana has had many effects on the workplace, including concerns under the Americans With Disabilities Act, and the New York State and New York City Human Rights Laws, this article is focused on recreational marijuana.
Hashing Out Problems
The most likely issues to arise for employers include:
- Pre-Employment Drug Testing
- Workplace Discipline
- Testing Standards
- Workforce Productivity
- Workers’ Compensation Questions
Pre-Employment Drug Testing. New York state permits pre-employment drug screening, but New York City prohibits marijuana testing for job applicants. Gov. Cuomo has stated that the purpose of the anticipated legislation is “to correct longstanding wrongs,” particularly to individuals from “communities that have been most harmed by decades of cannabis prohibition.” This suggests that New York may prohibit pre-employment marijuana testing statewide. Pre-employment drug screening, however, will likely be allowed for positions with higher safety requirements (such as first responders, police officers, or jobs requiring a commercial driver’s license). New York City has included similar exceptions under its general prohibition of pre-employee screening for marijuana as a condition of employment.
Workplace Discipline. Another big question is whether employees will be protected from workplace discipline based on their recreational marijuana use. In Colorado, recreational marijuana legalization has not curtailed the employer’s unfettered right to require an employee to participate in drug or alcohol testing (as in Colorado). See Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 976 (2011). In contrast, New Jersey, which recently voted to legalize recreational adult-use marijuana, appears to be set to take a more lenient approach. New Jersey’s draft legislation, the NJ Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, may provide a good barometer, especially given the recent history of cooperation between the states’ governors in coordinating their COVID-19 efforts.
Under New Jersey’s draft legislation, an employee can be required to submit to a drug test under the following circumstances: (1) upon reasonable suspicion of cannabis use while engaged in the performance of the employee’s work responsibilities; (2) upon observing signs of employee intoxication related to cannabis use; or (3) following a work-related accident (subject to investigation by the employer). These standards, however well-intentioned, will likely result in an entirely new body of employment litigation.
Consider the supervisor that observes an employee who smells of marijuana upon returning from a break but shows no observable signs of intoxication. Can that employer compel the employee to take a drug test? And if so, should the employer do so? It is easy to imagine an employee claiming to have been targeted for testing based on a supervisor’s employer’s anti-marijuana animus. Considering the limitations of current marijuana testing, the employee may credibly assert a positive test was caused by previous marijuana use—not current intoxication.
One of the key ways for employers to reduce liability will be to have clear, concise, non-discriminatory policies concerning marijuana use, accompanied by robust training and trusted advice from counsel.
Testing Standards. Positive cannabis test results vary depending on the type of test administered and the physicality of the test subject. THC, the chemical responsible for marijuana’s psychoactive effects, may remain in the body for days or even weeks after use—meaning a positive test for cannabis does not necessarily indicate current intoxication, nor the frequency of use. Typically, THC is detectable for up to 90 days in hair, anywhere between 3 days to a month or longer in urine, up to 48 hours in saliva, and up to 36 hours in blood. As a result, uniformity of testing methods and results interpretation would assist employers in making fair decisions, but it would not be a panacea. New Jersey has attempted to tackle this issue in its draft bill by requiring: (1) scientifically reliable objective testing methods and procedures, such as blood, urine or saliva tests; and (2) a physical evaluation by an individual certified as a Workplace Impairment Recognition Expert. If both the Recognition Expert and drug test indicate that an employee is under the influence in the workplace or during work hours, an employer may take adverse action. This procedure is designed to minimize employer liability and be fair to employees, but it cannot completely eliminate a challenge to the reliability of the drug test performed and the accuracy of physical evaluations.
Workplace Productivity. Researchers are still learning about how marijuana affects the body, but it is widely-accepted that cannabis directly impacts the parts of the brain responsible for memory, learning, attention, decision making, coordination, emotions and reaction time. There is an increasing debate about the detrimental impact out-of-work marijuana use has on workplace productivity—even in the absence of current intoxication.
Recent research suggests marijuana use may not have negative effects on job performance or productivity the day after use. See Jeremy Bernerth et al., Altered States or Much To Do About Nothing? A Study of When Cannabis Is Used in Relation to the Impact It Has on Performance (May 17, 2020); M. Minge et al., The Definition of Hangover After Cannabis Use and Potential Effects on the Ability To Drive (2019). And new technologies may one day provide a solution to the productivity question—an app called “DRUID” claims to provide objective evaluations of cannabis impairment. Such an app could be a useful tool in workplace management, but widespread use of this technology is likely a long way off. Any anticipated legislation will likely leave the productivity question for employers to address through policy and practice.
Workers’ Compensation. Employers will also have legitimate safety concerns regarding marijuana use in the workplace, including its effects on the Workers’ Compensation rubric. Currently, Workers’ Compensation benefits can be denied if the injury is caused by the employee’s drug or alcohol intoxication. New York presumes, however, that workplace injuries are not solely caused intoxication; to deny coverage the employer must show that the employee was intoxicated at the time of the incident and that the intoxication caused the injury. N.Y. Workers’ Comp. Law §§10, 21. A post-accident positive test is not necessarily sufficient to deny Workers’ Compensation coverage under existing law; an employer must show “all the evidence and reasonable inferences therefrom allow no other reasonable conclusion than that intoxication is the sole cause of claimant’s injury.” See Post v. Tennessee Prods. & Chemical, 19 A.D.2d 484, 486 (3d Dept. 1963), aff’d 14 N.Y.2d 796 (1964). Thus, it is expected that any comprehensive enactment will consider this issue as well.
A Hazy Future
New York employers will have to wait and see what form the legislation takes. Regardless of whether the law provides clear guidance, New York employers will have tools to manage their workforces and protect themselves from litigation. Employers should make sure their testing programs are compliant with existing laws, their supervisors are trained to observe intoxication, and their policies are strong—but also flexible. Businesses also need to think ahead so that they can adapt, because when legal marijuana comes to New York, the challenges will present themselves quickly. And those challenges will impact all facets of the employer-employee relationship: hiring, managing the workforce, discipline and discharge. The time to consider those challenges is upon us.
“Getting into the Weeds of Marijuana Legalization: A Guide for Employers,” by Mara B. Levin and Anthony A. Mingione was published in the New York Law Journal on February 19, 2021.
Reprinted with permission from the February 19, 2021, edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or firstname.lastname@example.org or visit www.almreprints.com.