Aug 06, 2021

Mulvehill, Impact of Marijuana Legislation on Employee Testing Measures

Featuring: Kevin J. Mulvehill

Marijuana legalization impacts employer testing measures

With the passage of the Marijuana Regulation and Tax Act in March, employers in upstate New York may no longer make a job offer contingent upon a negative test for marijuana in many cases.

That’s because pursuant to the Act and New York State labor laws, employers can’t take adverse employment action against an employee or potential employee based on their legal usage of a lawful substance such as marijuana.

“MRTA does not prohibit employers from testing for cannabis, but for a lot of employers t he quest ion is, why do it if you can’t take adverse action based on recreational use?” says Saratoga Springs-based Harris Beach, PLLC partner Douglas Gerhardt.

A lot of employers aren’t testing for cannabis anymore. Employers don’t want to put themselves in a situation in which they could potentially violate the law, explains Woods Oviatt Gilman attorney Jason Klimek.

New York City employers stopped testing applicants for marijuana in 2020. Medical marijuana users have had employment discrimination protection since it was passed in New York in 2014.

As a result of legalization, employers should be revising their existing policies to comply with the new cannabis law, attorney Kevin Mulvehill of Phillips Lytle LLP recommends.

“At this point, it’s advisable not to test for marijuana in the pre employment stage,” he says.

Finding enough employees is hard enough in many job areas today. Excluding people who test positive for marijuana makes it even tougher.

One of the nation’s largest employers, Amazon, stopped testing applicants for marijuana recently citing the national labor shortage in their decision.

“You can fill a lot more open jobs if you don’t test for marijuana. Excluding those who test positive isn’t beneficial,” Mulvehill explains.

Testing applicants and employees for marijuana after legalization

But, there are exceptions, and some are included in the law that made recreational marijuana use legal in New York.

The biggest exception is for anyone working for a federal agency or for an employer who receives federal funding. In that case, employment can be denied pursuant to the federal Drug Free Workplace Act.

But for the average private small employer not reliant on federal funds or subject to federal regulation, they can’t use a marijuana drug test to keep from hiring someone, explains Klimek.

What they can do, as before, is to conduct pre employment testing for other drugs such as cocaine and heroin. The utility of a pre-employment urine test for marijuana is diminished, however, since employers can’t take adverse action.

If an employee uses marijuana on the job, shows signs of impairment on the job, is unable to perform their job or is involved in a workplace accident, a positive test for marijuana could still be used as a variable in a dismissal action.

Short of dismissal, employers should consider offering employees drug program assistance and counseling to help them overcome addiction. Employers may also want to consider moving an employee to an area they may be more productive or effective in.

Documentation of an employee that relies on more than a positive test for marijuana is necessary. It’s advisable to have more than a positive for marijuana test as the basis for dismissal for impairment on the job especially since THC can be detectable in the body for six weeks.

In the post-legalization era, employers should treat employee marijuana use like alcohol, Klimek advises, which is to allow employees to do what they want outside of work as long as it doesn’t affect their performance while at work.

Unlike a blood alcohol content test, however, there is no specific amount of THC to define marijuana impairment in New York at the present time. Nor is there a scientific consensus, Klimek says.

“A heavy smoker may not necessarily be impaired while someone who doesn’t smoke regularly might be impaired with just a low level of THC,” he says.

Adds Gerhardt: “There’s no distinction of how much THC constitutes impairment, a little or a lot,” who used the example of Elaine failing a drug test based on her consumption of a poppy seed bagel on “Seinfeld” as an example of the difficulty of relying on marijuana testing.

While there is clearly more employment protection in New York state today for marijuana users, it is still an at will employment state in which employees can be fired for almost any reason as long as it’s not discriminatory.

All the more reason not to conduct marijuana testing since an employee could claim the test was a discriminatory reason for dismissal, attorneys say.

The need for guidance and clarification

Attorneys say clients are actively seeking clarification of testing issues since recreational marijuana became legal on March 31, but Gov. Andrew Cuomo’s office has been strangely silent on clarification and has yet to establish a cannabis control board that is supposed to provide more specific guidance than the bill provides.

“Nothing has changed since the day the bill was enacted. We’re still waiting for the regulators to be appointed to shed more light on the uncertainties,” says Klimek. “We’re very behind on this and waiting to see what happens next.”

“I would like to think that the control board will provide clarification. We need that,” Gerhardt says. He also notes that other states that have legalized marijuana are ahead of New York in sorting out the particulars and could be used as a model.

He doesn’t see the clarification New York needs coming from the federal government in the near future, although it gets more and more attention from congressmen in proposed bills.

Once the control board sorts the ambiguities out, Gerhardt would like to see employers and their advisors put together an employer policy handbook that would guide them in conducting an effective identification and investigation of reasonable suspicion and erratic employee behavior that isn’t based solely on a positive for marijuana test.

“I recommend that employers make it clear they are looking for a safe and effective work environment and that the scope of that policy applies to everyone,” he says.

Todd Etshman is Rochester-area freelance writer.