A new bill legalizing recreational marijuana makes New York the 16th state to do so, and while advocates are praising the move, some employers are lost in a cloud of confusion. The bill makes it legal to possess small amounts of marijuana, launches programs to help communities that bore the brunt of the national and state drug war, and will eventually allow marijuana sales to people over the age of 21. So what does this mean for the healthcare industry as a whole, and how can organizations navigate the complexities that accompany this new legislation? Here’s what you need to know.
New Yorkers can smoke cannabis in public wherever smoking tobacco is allowed, though localities and a new state agency could create regulations to further control public cannabis use. Cannabis use, however, is not permitted in schools, workplaces, or inside a car. But, the cannabis confusion and concern don’t end with this new set of rules. A National Institute on Drug Abuse study found that employees who tested positive for cannabis had 85% more injuries, 55% more industrial accidents, and 75% higher absenteeism rates. With life or death stakes in the healthcare industry, it is not hard to see why employers choose to offer a safer work environment through effective drug and alcohol testing.
As it is now illegal to discriminate against someone for legal use of cannabis, refusing to employ someone merely because of the presence of cannabis in a drug test result could expose the employer to a discrimination claim even if the employer’s decision was unrelated to the applicant’s cannabis use. The new cannabis law amends NYS Labor Law 201-d, and according to the Business Council of New York State, the new law does not prohibit testing for marijuana. Employers remain free to test both applicants and employees under the law. However, for employers who are not required to do pre-employment testing, doing so may provide more risk than reward. Because recreational use of marijuana is now legal, employers can no longer discipline or discharge an employee simply for having marijuana in his or her system while at work, as may be revealed by a drug test. The law requires that, before taking adverse employment action against an employee for marijuana use, an employer must show that the employee manifested “specific articulable symptoms” of marijuana impairment. A positive test for marijuana will not be sufficient to establish impairment under the law. A positive test, however, may still have value in supporting an employer’s determination that symptoms exhibited by an employee were related to marijuana use by confirming that the employee used marijuana. While there have been some indications that the National Council of State Boards of Nursing is moving toward providing individual state boards with more nuanced guidance to cases involving positive THC tests in nurses, one that takes into account a number of circumstances beyond the test results, the intent of state boards of nursing and employers will by definition remain one of erring on the side of patient safety. And while nurses who have been dismissed by hospitals for positive THC tests have begun to win cases against their employers, it remains an incredibly complex issue.
Employers can fire someone who is working while impaired by marijuana, according to New York’s medical marijuana law, but proving impairment can be complicated. “Employers are allowed to prohibit marijuana use at work and allowed to prohibit employees from reporting to work impaired,” said Geoffrey Mort, a member of the New York State Bar Association’s Cannabis Law Committee. While companies with federal contracts and grants, as well as federal agencies, must have a drug use policy that’s enforced, enforcement is difficult because unlike testing for alcohol or other substances, marijuana shows up on drug tests long after its impairing effects subside. The window for testing positive for cannabis is anywhere from three days to seven days (or longer) for urine and saliva testing and up to 90 days for the more sensitive hair testing. Employers should take caution when disciplining employees because The Americans with Disabilities Act (ACA) protects those who take medication for a disability, and because of how long THC stays in the system, it may be challenging to prove an employee was under the influence of marijuana on the job. Employers must ensure they engage in an “interactive dialogue” and consider any reasonable accommodations before taking adverse actions against an employee for reasons related to medical or recreational marijuana. Even in the face of a positive drug test, employers cannot and should not automatically terminate the employee, but should first consider whether the employee is a certified user. If the employee is a certified user, employers must engage in an interactive dialogue to determine whether it must accommodate. While employers do not have to accommodate employees who cannot adequately perform their job functions or are excessively absent due to the use of medical marijuana, employers also cannot automatically terminate an employee who is a marijuana user if he/she tests positive for drug use.
Now is an important time for New York healthcare organizations to reconsider company policies and procedures relating to pre-employment drug testing as well as establishing impairment signals for employers to identify. If reasonable suspicion occurs on the job, the employer should explain to an employee what has been observed and a policy should outline how suspected impairment will be dealt with. Generally speaking, managers and supervisors should be trained to observe impairment signals and employees should be educated about the company marijuana-use policy and the repercussions for failed tests, including random, post-accident, or reasonable suspicion tests.
Marijuana sales won’t start until New York sets up regulations and a proposed cannabis board, however, possession and use are now legal. Assembly Majority Leader Crystal Peoples-Stokes has estimated it could take 18 months to two years for sales to begin. Lawmakers estimate the legislation will eventually bring in $300 million a year to cover the state’s cost of regulating and enforcing the program, with the remainder divided among schools, drug treatment and prevention programs, and a fund for investing in job skills, adult education, and other services in targeted communities. A regulated adult-use market would create 76,000 jobs by 2027, according to MPG’s market analysis that was prepared for the New York Medical Cannabis Industry Association. Still feeling like you’re in a fog of confusion? You’re not alone. This is a complex issue that requires legal expertise and a lot of consideration from management and HR professionals alike. Please feel free to contact our dedicated RBT team to discuss your manufacturing company needs. Additionally, if you have HR questions, please reach out to our wholly-owned subsidiary Visions HR, to connect with HR professional Janet Giannetta.
