Baker Hostetler: Screening Employees for Marijuana in New York Goes Up in Smoke

Last month, Gov. Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA), which legalized adult (21 years of age and up) use and possession of up to three ounces of marijuana (or 24 grams of concentrated marijuana). This legalization spurs questions for employers: Are they allowed to prohibit the use of marijuana? Can they discipline for the use of marijuana? Can they drug test for marijuana? We’ve got the answers. What stays the same? The MRTA specifically permits employers to continue prohibiting the use or possession of marijuana in the workplace, working under the influence, driving under the influence and any action endangering others. Nothing in the MRTA prohibits an employer from taking action in response to the use of marijuana based on:

• Any reason required by state or federal law.
• An employee’s impairment (meaning there must be articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of their job or interfere with an employer’s obligation to provide a safe and healthy workplace).
• If the employer’s action would require the employer to commit any act that would cause the employer to be in violation of federal law or result in the loss of federal funding or a federal contract.

What changes? The MRTA now permits physicians to prescribe marijuana for medical use for any condition. As a reminder, certified patients must not be subject to penalty or any disciplinary action because of their use of marijuana as a patient. Being a certified patient will be deemed to be a disability and such patients must be provided the same rights and protections available to injured workers under the workers’ compensation laws, who, because of prescriptions, are restricted in their abilities to perform duties. The MRTA amends the Labor Law to make clear that the use of marijuana in accordance with the law prior to or after a workday and off the employer’s property is a legal recreational activity for which an employee may not be disciplined. As a result of this amendment, and because marijuana can stay in one’s system long after it has been consumed and such drug testing is not specifically exempted anywhere in the MRTA, the MRTA seemingly prohibits drug testing for marijuana use. What now? Employers should be sure that drug policies are reviewed to ensure the MRTA is properly addressed, that their drug testing policies properly exclude marijuana screening and that managers are properly trained on such policies.