With the passing of the Marijuana Regulation and Taxation Act (MRTA), many employers are questioning how this will impact their workplace drug-free policies. There are also questions regarding how this will impact compliance with the federal Drug-Free Workplace Act.
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Workplace policies regarding marijuana and other drug use are not new concepts to employers. In 1988, Congress passed the Drug-Free Workplace Act which set requirements for workplace policies regarding controlled substance use.
Many employers in New York State are required to abide by the Drug-Free Workplace Act. The Act requires that employers create a drug-free awareness program and a drug-free workplace policy. For the awareness program, the employer must inform their employees of the dangers of drug use in the workplace; that the employer maintains a drug-free workplace policy, any available drug counseling, rehabilitation, or employee assistance programs; and, the penalties of violating the drug-free policy. For the drug-free workplace policy, the employer must publish and provide a statement notifying employees that the unlawful use and possession of a controlled substance in the workplace is prohibited.
Because New York has had a medical marijuana program since 2014, New York employers have had an opportunity to craft drug-free workplace policies that take that program into consideration. When the Compassionate Care Act was passed in 2014, it also contained changes to the New York State Human Rights Law. The qualifying conditions in the Compassionate Care Act are so debilitating, that any person who qualifies under the Compassionate Care Act may also be considered disabled for the antidiscrimination provisions in the New York State Human Rights Law. This means that employers taking action against an employee who uses medical marijuana may find themselves in the middle of a discrimination suit. To avoid this, employers need to ensure that they are having an interactive conversation with their employees who use medical marijuana regarding any accommodations the employee may need. They also need to ensure that they have a reason for taking any action against an employee other than their medical marijuana use. None of this, however, prevents an employer from banning marijuana use, even medical marijuana, in the workplace.
For recreational users, employers will certainly have more leeway. The MRTA specifically states that it does not intend to prohibit an employer from establishing workplace drug-free policies. However, one item that employers should keep in mind is drug testing. There are currently no reliable tests available that can determine exactly when a person last consumed marijuana. There are also factors, such as body fat percentage, hydration, exercise and the amount of THC, or Tetrahydrocannabinol, contained in the cannabis that was consumed. Not only must the employer consider what type of test to use and the related cost, but they must also consider the cost of possibly losing an employee. More importantly, the employer must consider that with the inability to determine exactly when an employee engaged in cannabis use, they may be violating Section 201-D of New York State’s Labor Law should they take any action against an employee based on their marijuana use. That Section specifically prohibits an employer from discriminating against an employee for their legal consumption of cannabis during non-working hours.
Finally, employers are also concerned about workers’ compensation requirements and credit received under New York State’s Workers’ Compensation Law. Section 10 of New York State’s Workers’ Compensation Law allows an employer to avoid liability when a workplace accident is solely caused by intoxication from alcohol or a controlled substance. With the inability to currently determine the exact point at which an employee consumed cannabis, even if the employee has a positive drug test, the employer may still be liable. As it is illegal to discriminate against an employee for marijuana use outside of work, employers should still be allowed to collect the tax credit for drug-free workplace policies. This is assuming that the employer meets the other revenue and related requirements to otherwise qualify.
With the passage of the MRTA, an employer’s requirements and liabilities have not drastically changed. If an employer was not subject to the federal Drug-Free Workplace Act prior to the MRTA, then that will not change with an employee’s cannabis use. An employer is still allowed to require a drug-free workplace and receive the tax credit in New York for doing so. The employer will still be subject to the same antidiscrimination laws for medicinal users, but they will now be unable to take actions against an employee for the cannabis use during non-working hours. Finally, an employer’s liability for workplace injuries related to marijuana intoxication will be difficult to determine as it remains nearly impossible to ascertain when an employee last used cannabis with current testing methods.
Allen Shoikhetbrod is a Partner at Tully Rinckey PLLC with extensive experience in federal, state, and private employment law matters, including claims of discrimination, harassment, retaliation, qui tam and whistleblower actions, and disciplinary matters. He has represented clients before federal and state courts, as well as before administrative tribunals and agencies including the Equal Employment Opportunity Commission (EEOC), Merit Systems Protection Board (MSPB), U.S. Department of Labor (USDOL), and matters before the U.S. Office of Special Counsel (OSC). He can be reached at (518) 218-7100 or at info@tullylegal.com.
