Forget that drink after work. Depending on how this year’s legislative session goes, you may soon gather with your coworkers after a long day for some marijuana. Your boss might even come along. Heck, ask the human resources director if they’re going straight home after 5.
Gov. Andrew Cuomo plans to push a bill legalizing recreational marijuana for people 21 and older into the state budget. It’s the second straight year Cuomo has listed the policy change as a priority in his executive budget, removing it last year with the hopes of passing it as a stand-alone bill that never made it off the ground.
Even if recreational use is legalized in 2020, it’s perhaps a bit too rapid a social acceptance evolution to suddenly offer your company’s CEO a toke. Before the state decriminalized small possession, some people feared illicit use would land them in jail. Now some may worry they’d lose their jobs.
In its current form, the bill’s language prohibits discrimination at work, in school, housing, family court or by professional licensing boards. Essentially, it would be just as legal for adults to use during non-working hours as alcohol.
But will that be kosher with employers who depend on continuing practices like pre-employment drug screening?
“I don’t think that within that (bill) we are going to pass anything which will say it’s legal to possess and smoke marijuana, but at the same time it’s legal for your boss to fire you if you smoke this,” said Assemblyman Jeffrey Dinowitz. He and state Sen. Alessandra Biaggi were co-sponsors of last year’s attempt to legalize marijuana in their respective chambers.
But just because the state legalizes recreational use doesn’t mean the federal government agrees. It’s still considered a Schedule 1 controlled substance with no medical use and a high potential of abuse.
Anyone caught with marijuana in a state where it’s prohibited and without holding a state-issued medical marijuana card could be in trouble. Legal opinion and federal guidelines have gone back and forth in the last decade — sometimes relaxing federal enforcement over states that have legalized cannabis, and sometimes asserting Washington’s prosecutorial authority under the federal Controlled Substances Act.
While New York could potentially criminalize discriminating against someone who uses cannabis recreationally, federal employers and any company with federal contracts could cite the federal law as reason to bar any employee marijuana use.
“There’s a lot of different things that are impacted by the bill as it currently stands,” said labor attorney Mahir Nisar, himself an advocate for cannabis legalization. “Institutions such as financial institutions don’t want to be involved with use of a federally banned substance under the law.”
The state legalized medical marijuana use in 2014, including language protecting employees prescribed cannabis by a state-certified doctor for specific ailments. Cancer, AIDS, ALS, Parkinson’s disease and chronic pain are just some of the approved conditions for treatment with medical marijuana.
“Under the New York state law, employers need to go through a process to reasonably accommodate employees who have certified medical marijuana cards for their health conditions,” Nisar said.
The current bill would not limit an employer’s ability to “enact and enforce policies pertaining to cannabis in the workplace.” Employers don’t have the legal authority to prohibit workers from partaking in legal activities outside of working hours, according to a report by Manhattan-based law firm Barclay Damon.
“However, a more narrowly tailored rule noting that employees may not use marijuana during work hours may be acceptable,” the report states. “The key will be for employers to specifically tailor narrow employment policies so as not to run afoul with the proposed legislation.”
The bill does allow employers to discipline or fire employees for marijuana use or possession at work if the employer clearly states so in its employee handbook. But there’s a loophole some employers could exploit.
“Unlike with alcohol use, there is really no test to distinguish between recent marijuana use and current impairment,” said Meghan Slack, chair of the Massachusetts Bar Association’s young lawyers division. Massachusetts legalized recreational use in 2016.
A Breathalyzer test can measure a person’s alcohol impairment immediately. A drug test simply shows someone has consumed cannabis at some point in the recent past. Results will be the same if the person used marijuana over the weekend or after they clocked in that morning.
“That’s creates some problems with drug testing by employers because you don’t know if it was taken at home off the clock,” Slack said.
Proposed legislation states that a positive result for cannabis isn’t proof the employee was impaired.
“However, if the drug test specifically yields positive results for certain active cannabinoids (chemicals) found in cannabis that cause impairment, it will be a sufficient basis for an employer to establish the employee was under the influence of cannabis while at work,” according to the Barclay Damon report.
“For recreational purposes, it really comes down (to) the nature of employment that you’re in,” Nisar said. “Is there certain functions that are going to be impaired that are going to impact your ability to perform your job, especially when it comes to recreational things?”
The New York Bar Association jumped on the legalizing marijuana bandwagon this month, sharing its thoughts on how the state should license growers and regulate retail sale. But missing from the document are any guidelines for ensuring people using a legal substance are protected from discrimination in the workplace.
“I think that the proper thing to say would be that our report is silent on that issue,” a New York Bar spokesman said.
But while there may not be a simple answer to the discrimination aspect of the bill, there are examples from states that passed similar laws years ago. Many employers in Massachusetts are backing off zero tolerance policies for fear of firing an employee with a legitimate medical need, Slack said.
Now, when Massachusetts employers get test results for marijuana, she added, they’re more likely to begin an open dialogue with the employee about when and why they use cannabis.
Still, there have been cases where companies terminated longtime employees when any use was discovered, whether it was recreational or medical.
“There’s been (employers) that received a lot of blowback for that because they were terminating otherwise exceptional employees who weren’t impaired on the job, but just using at home off the clock,” Slack said. “For all of those reasons, people are really reconsidering policies and what happens when employees are getting positive results.”
CORRECTION: The chair of the Massachusetts Bar Association’s young lawyers division is Meghan Slack. A story in the Feb. 13 edition had a different name.