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New York was the first state to pass a law banning employers from testing workers for cannabis without signs of impairment as part of the legalization of recreational marijuana. More than two years later, the labor law lacks clarity for both employers and employees, a new report from Cornell University said.
The Cornell Labor and Employment Law Program studied the rights of employers to have a safe and drug-free workplace in conjunction with the rights of adults, including workers, to use marijuana recreationally in New York after the drug was legalized in March 2021. The labor law makes an exception for federal employees and also workers at companies with federal contracts; those workers are still subject to cannabis testing due to the drug’s classification as a Schedule 1 drug federally, which lumps it with drugs such as ecstasy, heroin and LSD.
Esta Bigler, director of the Cornell program, said that their findings show the law lacks clear regulations on how and when employers can test for cannabis. “It is a recreational drug, and it is not to be used at all when you’re working,” Bigler said. “It sounds simple, right? But it’s not.”
The main problem, Bigler said, is that tests generally show cannabis use for up to 30 days. There is no affordable, reliable test for marijuana impairment that could show if someone was actively under the influence at work, although companies are jockeying for one and some claim their tests are trustworthy.
“The science has not caught up and that’s part of the problem here,” Bigler said. The development of a test, similar to a breathalyzer for marijuana, would also solve major problems for law enforcement in determining whether someone is driving under the influence.
Assembly Majority Leader Crystal Peoples-Stokes agrees that a reliable test for impairment would solve a lot of issues for employers and law enforcement while being more fair to employees. Peoples-Stokes believes that technology is forthcoming, with more research and development being done within the cannabis industry and promoted by New York's Marihuana Regulation and Taxation Act.
“People should be patient and allow us to work through the issues as it relates to building on this cannabis regulation in New York as well as protecting people in their places of work,” Peoples-Stokes said.
Cornell’s report recommended that changes be made to the law to include a private right of action for employees who are fired for lawful cannabis use, allowing them to take legal action to dispute their firing. They also called for those employees to have a reasonable opportunity to dispute disciplinary actions against them for cannabis use.
The report asserts that the law should be clarified to require both a positive drug test and an “evidence-based” evaluation of impairment for a finding of employee misconduct.
Peoples-Stokes believes that employers determining signs of impairment can be subjective and that employees may disagree with claims against them, similar to other issues within the workplace. To lodge a dispute, employees can contact the state Department of Labor, the assemblywoman said.
“Employees should have the same worker protection rights [for cannabis] as we have across the state and across the nation,” Peoples-Stokes said.
The university's report also says that “subjective interpretations of employee behavior, appearance and stereotypes about who uses cannabis” could “disproportionately harm workers of color.”
Medical marijuana use, with a valid prescription, also has become contentious. In July, the Times Union reported that a wastewater treatment worker, who was fired by the city of Amsterdam three years ago after testing positive for marijuana, was awarded $191,762 by a jury that found city officials had discriminated against him when they ignored he had been prescribed the drug for chronic back pain.
New York Human Rights Law deems someone with a medical marijuana prescription as having a disability and makes them part of a protected class. The Compassionate Care Act allowing medical prescriptions of marijuana was signed into law in July 2014 and took effect January 2016. That law initially authorized certain doctors to prescribe its use for serious medical conditions. The law has since been adjusted to allow doctors to prescribe marijuana for any reason, including anxiety and insomnia.
The Food and Drug Administration also promulgates rules that note marijuana has a high potential for abuse and that its use as a dietary supplement has not been approved. But its use has soared as 23 states, three territories and the District of Columbia have legalized cannabis. But the legalization has also spurred concerns about whether individuals may be using marijuana at work, including in high-risk jobs, or driving under the influence of the drug.
The Times Union reported in April that the number of motorists charged with driving under the influence of narcotics, including marijuana, has risen steadily over the past five years in New York. With no widely accepted test for use in law enforcement, New York lawmakers made it a violation of motor vehicle law for someone to burn marijuana in a vehicle — similar to the open-container prohibition for alcohol.
While there is not yet any data about employees being tested or fired for cannabis use, Ryan J. McCall, an attorney for the Tully Rinckey firm which specializes in cannabis law, said that claims of discrimination in testing could lead to disputes with the state Division of Human Rights.
McCall has consulted with both employers and employees on how the law affects them. Business owners and managers are trying to stay in compliance with the law while making sure that they keep their workplace safe and drug-free, McCall said. At the same time, many workers are able to partake in a legal activity outside of work — cannabis use — without facing unfair repercussions, the attorney said.
“I think New York state right now is trying to find that balance,” McCall said. “I am not saying that it’s perfect right now but I think it’s definitely somewhat of a compromise.” McCall said that he has advised employers to only test their workers for cannabis use if they are showing obvious signs of impairment. The attorney also advised that employers should document their observations and any decisions to test their employees. Written By Molly Burke