By Patrick Connelly, originally published in Buffalo Business First on Jan 19, 2021, 6:00am EST.

Will cannabis legalization prompt changes to workplace policies?

The legalization of recreational adult-use cannabis appears to be on the horizon in New York state.

If the laws surrounding it do change, depending how things are structured, workplaces that restrict usage may have to reshape their zero-tolerance policies or rethink how they want to screen prospective employees.

“I think it’s likely to go through,” said Brendan Kelleher, member at Harris Beach PLLC. “The challenge for employers is how they want to regulate usage among employees, how and when they want to test for it and worries that employees could be under the influence.”

He said current laws for medicinal cannabis prohibit discrimination of those who use it as a form of treatment. People, however, do not have free rein to use it during their workday and employers have the ability to discipline anyone who is impaired at work.

“It’s not as easy to test for marijuana as it is for alcohol,” Kelleher said. “Alcohol only stays in a person’s system for a certain amount of time and employers can test the exact level. With marijuana, it can stay in your system for longer.”

State labor laws permits off-duty usage of legal substances. If someone were to use marijuana on a day off, it would still register in a drug test several days later if they are tested randomly or following an on-the-job accident.

Kelleher said it will be up to employers to determine where they want to draw the line.

Federally cannabis remains illegal, which has left employers with operations around the country to decide if they want to change policies on a state-by-state basis or keep rules they have traditionally had in place. Kelleher said that legalization in New York state, however, would likely trigger protections through the labor law.

“That would limit an employer’s ability to say they want to be a completely cannabis-free workplace,” he said.

James Grasso, partner at Phillips Lytle LLP, has heard questions from clients on how they should proceed if legalization occurs.

“This has been a topic now for a couple of years,” he said. “If New York goes ahead and legalizes recreational marijuana, that’s really going to change the game for employers.”

The easiest way for employers to think about it, he said, would be to align policies with those a workplace has surrounding alcohol consumption.

“It’s essentially going to be the same,” Grasso said. “Employers are going to have to adapt to that and understand that, if legalization comes to fruition, they would no longer test for the presence of marijuana in pre-employment screening because it would be legal. If they do conduct random or scheduled testing for employees, they are going to have to consider what to do if they get a positive test.”

To check if employees are using cannabis on the job, he suggested that employers will need to train managers on what to watch for.

“They are not going to be able to just rely on a drug test to prove that because of the amount of time it stays in someone’s system,” Grasso said.

He said revisions to current workplace policies for alcohol to include guidelines for cannabis could be possible, but it’s likely rules will have to be more extensive.

“I think they could use it as a template but I don’t think they are going to be able to adopt it wholesale,” Grasso said. “For marijuana, they are going to want to be able to identify in their policy the reasons that would give rise to reasonable suspicion.”