A New Landscape
On March 31st, 2021 New York State passed the Marijuana Regulation and Taxation Act (“MRTA”) which legalized the use of cannabis recreationally for adults over the age of 21. It’s also legal in a similar capacity in 17 other states and is legal for medical use in 36 states. But under the Controlled Substances Act of 1970, it is still illegal in the eyes of Federal Law. You can’t grow it, smoke it, or make gummies out of it. If you do, you may face serious consequences, including the loss of Federal contracts or even jail.
Some say the Federal law will change soon, but no big changes are imminent. So, what do you do if you are an employer trying to avoid liability? Or what do you do if your boss is trying to fire you for using marijuana legally? We are in the twilight zone, that space between what was, what is, and what will be. It’s sure a bit hazy. Let’s clear things up.
On the clock? Not on the clock?
The MRTA amends NYS Labor Law Section 201-d to prohibit employers from refusing to hire, license; to discharge from employment; or otherwise discriminate against an individual because they use cannabis lawfully outside of working hours, off the employer’s premises, and without the use of the employer’s property or equipment. A key issue is whether someone is using cannabis at work or home, on the clock or off. A recent case in New Jersey (JUSTIN WILD v. CARRIAGE FUNERAL HOLDINGS, INC.) made this point.
Justin Wild had cancer. His doctor prescribed him marijuana to deal with the pain. Justin had a car accident while at work. His boss made him take a drug test before he returned to work. The drug test showed marijuana in his system, and his employer fired him for failing to disclose that he was taking medication that might have affected his work. Justin sued for wrongful termination and won.
The New Jersey Supreme Court ruled that an employee can pursue a claim for being fired for medical marijuana use outside of work. Let me repeat that last part—outside of work. This case, although a state case, has people talking across the country because it highlights that important “on the clock, off the clock” distinction.
To test or not to test? Marijuana lasts in the system
How do you determine if someone is using on the clock? Current tests aren’t great because unlike alcohol (which is water-soluble) marijuana is fat-soluble. Alcohol dissipates in hours, but marijuana can last for weeks, even months. Breathalyzers for marijuana use are in development, but not readily available. And there is no agreed-upon standard for impairment.
According to Rob Mejia, Adjunct Professor in the Cannabis Studies Department at Stockton University, and author of “Essentials Cannabis Book”:
"Cannabis breathalyzers are being developed but challenges remain because experts disagree on the level of impairment since each person's physiology is different. For example, Colorado has determined that 5 nanograms of THC per milliliter of whole blood is grounds for DUI charges, but that is not yet a generally accepted standard."
Thus, at least until technology catches up, you might want to rethink testing as part of the interview process. And generally, if you fire someone, you better be sure that they were impaired at work. In other words, on the clock and high.
There are some distinct considerations for employers within the amendment to NYS Labor Law Section 201-d,
Compliance with state or federal law. The employer’s actions were required by state or federal statute, regulation, ordinance or any other state or federal mandate.
(Some industries involve hazardous working conditions where a testing policy may be compulsory.)
Employee impairment due to cannabis use. Where the employee manifests "specific articulable symptoms" while working that:
- Decreases or lessens the employee’s performance of their duties; or
- Interferes with the employer’s obligation to provide a safe and healthy workplace as required by state and federal occupational safety and health law.
(Basically, if an employee’s marijuana use is causing impairment on the job such that it has rendered their performance insufficient, or their impairment is jeopardizing the health and safety of their co-workers, employers have reasonable grounds for termination.)
Violation of federal law or loss of federal contract or federal funding. Where the employer’s actions would require the employer to commit any act that would result in the violation of federal law or loss of a federal contract or federal funding.
(If an employee’s impairment is breaking a Federal law, or would cause the employer to lose a federal contract or funding, it is grounds for termination)
Get a policy. Make it clear.
HoganWillig advises employers to set workplace policies that identify signs of workplace impairment and trigger possible testing and discipline. These policies must be transparent and consistent. For example, consider work functions. You cannot allow alcohol use at office parties, but then deny the use of marijuana. Both cause impairment. Both are legal. And consider other scenarios where a clear policy regarding marijuana should be in place including smoke breaks, job requirements, and time away from the office.
The HoganWillig Three Points to Remember:
- Generally, if an employee does not use cannabis on the clock and their performance is not affected by after hours use, the employer shouldn’t care.
- The law (and culture) is changing fast. Change with it. Get a policy that is transparent and consistent. Keep yourself informed and up to date on the latest information coming out in this space.
- If you are involved in a field (such as banking, trucking, etc.) that falls under federal law or involves hazardous working conditions, you might need to test, and you certainly need a clear workplace policy.
DISCLAIMER: This article has been published as a service to the general public and as such, is intended for general purposes only. The information contained within this article should not be considered and/or construed as legal advice. Each reader is advised to consult legal counsel to determine how the contents of this article may apply to their particular facts and circumstances.
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