By Annemarie Franczyk, originally published in Buffalo Law Journal, Buffalo Business First on Jul 30, 2018, 10:20am.

BLJ: Navigating marijuana at work

The legalization of marijuana in New York state might mean pain relief to patients, tax revenue to politicians and a good time to partiers. 

But to employers, it means compounded risk of running a safe, productive and successful business while complying with conflicting state and federal laws.

Area labor lawyers have been guiding clients through the impact of marijuana on the workplace since it became legal for medicinal use in 2014 when Gov. Andrew Cuomo signed the Compassionate Care Act into law. 

Hundreds of their clients have sought counsel on identifying and making accommodations for physician-certified users of the drug. There are 59,653 certified users across the New York, according to a state assessment.

Now the lawyers and their clients are watching strong indications from Albany that point to legalizing marijuana for recreational use. Cuomo in his budget address in January charged a panel of state agencies to study the social, health, education, criminal justice and business impact of legalization, and in July, the panel, headed by the state Department of Health commissioner, endorsed the move. 

Labor lawyers say their clients are bracing themselves, though the initiative has a long legislative road ahead of it. 

“It adds to burdens they are already navigating,” said Amy Habib Rittling, a partner and leader of Employment Practice Team at Lippes Mathias Wexler Friedman. “They want productive workplaces, workplaces that are safe and workplaces that minimize liability. Each of these areas could have drastic consequences.”

Problems might start with those workers who push the concept of legalization.

“Employees might be under the misconception that they can smoke it at work and be under the influence at any time, and that’s not the case,” said Kristin Klein Wheaton, a partner at Goldberg Segalla and member of the firm’s Employment and Labor group. “You can’t come to work high, just like you can’t come to work drunk.”

Detection of drug use seems to be increasing in the workplace. According to a study of 2017 drug test results by Quest Diagnostics, drug use by American workers is trending upward.

Across the country, the use of marijuana as well as cocaine and methamphetamine was at 4.2 percent in 2017, up from 3.2 percent in 2012, which was a 30-year low. 

The state result was 3.5 percent, and in Western New York, it ranged from 3.5 percent to 4.5 percent.

Specific to marijuana, the study found increased rates in states that enacted recreational use statues since 2016. 

A positive test indicated the use of drugs, but did not pinpoint impairment, frequency, time of use or whether the use was medicinal or recreational.

Barry Sample, Quest’s senior director of science and technology, said a more precise test for marijuana, like the instantaneous breathalyzer to detect alcohol use, is not likely in the near future. Testing for marijuana is far more complex and complicated, he said.

Among the challenges: no consensus has been reached among the states about what levels of THC, the active substance in marijuana, constitute impairment. Also, the amount of metabolites, formed when the body breaks down the THC molecule, can vary widely depending on whether the marijuana was smoked or ingested, Sample said.

While most employers continue to use drug tests that include detection of marijuana, identifying someone who is under the influence could be determined by old-fashioned observation, said Kevin Mulvehill, a partner and labor and employment litigator at Phillips Lytle LLP. This would require a supervisor or manager to be specially trained to recognize the signs of impairment: blood shot eyes, dilated pupils, slurred speech, falling asleep, among others.

More than 100 employers attended a Phillips Lytle labor seminar that covered such training in addition to writing modifications of workplace procedures, clarification of policies and state and federal laws as they pertain to medical marijuana users, Mulvehill said.

Previously, New York allowed employers to not hire a job applicant whose pre-employment drug test was positive; now the applicant can’t be automatically excluded. 

Current employees who are legally prescribed medical marijuana need to be accommodated, per the Americans with Disabilities Act. These accommodations could be a different job or a modified schedule to allow the person to continue to work and take medical marijuana, said Erin Torcello, member and labor employment practice attorney at Bond Schoeneck & King.

A drug test that reveals marijuana use begins what should be a delicate conversation: “An employer needs to be very careful when encountering this situation,” Klein Wheaton said. “Employers can’t say, ‘What condition do you have that requires you to use marijuana?’”

A safer inquiry would be, “You have a positive result. Are you prescribed by a physician to use medical marijuana,” she said, and include the employee’s doctor in the conversation. Employers are not required to tolerate any worker who is under the influence, regardless of the reason. This is especially the case for employers such as the Department of Transportation and others who employ federally mandated, safety-sensitive workers such as pilots, rail, bus and truck drivers and workers in nuclear power plants.
 
Employers who receive federal contracts or grants also are required to provide a drug-free workplace by virtue of the Drug-Free Workplace Act, in place since 1988.

New York is among the 30 states and the District of Columbia that have legalized medical marijuana; eight of those have legalized it for recreational use. 

As more states decriminalize it, they will find themselves in conflict with federal laws. Earlier this year, the Justice Department announced that federal prosecutors can more aggressively enforce laws against the use of marijuana.

That signals a shift in policy and puts employers in a tough spot between conflicting state and federal laws. 

There are differing opinions among the lawyers whether the federal laws will trump state laws when it comes to individuals.

“I think employers could still fall back on it,” Habib Rittling said. “It will be up to each U.S. attorney’s office how the resources are going to be spent.”

Consistent policies articulated in clear language in employee handbooks can help employers communicate their tolerance of drugs in the workplace, Torcello said. 

A provision for medical marijuana, in any handbook or drug policy, should be specific and include the language governing reasonable job accommodation. 

While there are more laws in every jurisdiction, each case is unique and requires scrutiny, Klein Wheaton said. 

“As labor lawyers, we can’t tell clients if this then that,” Klein Wheaton said. “It requires analysis every time.”