Marijuana law 'a nightmare' for employers, legal experts say

New York’s legalization of adult-use marijuana has created a “nightmare” scenario for employers navigating what the year-old regulations mean for their operations and policies, legal experts said during a panel Tuesday.

Under the Marijuana Regulation and Taxation Act, most employers cannot penalize job applicants or employees for off-duty marijuana use. Barring some exceptions, employers are also not allowed to screen for marijuana in preemployment or on-the-job drug testing.

“It’s a nightmare for employers, to be honest,” Daniel A. Johnston, of counsel to Bell Law Group in Syosset, said during a Newsday webinar moderated by Newsday associate editor Joye Brown.

“It’s very, very difficult to navigate these new laws as an employer, or not ruffle feathers or step outside the bounds of the law,” said Johnston, who is also founder and chairman of Gotham Growth Corp., a Hauppauge company that intends to process cannabis.

Domenique Camacho Moran, partner and head of the labor and employment practice at Farrell Fritz, said that many of the ways employers previously determined whether someone may be under the influence are no longer viable under the new law.  

“Historically, somebody would come in smelling like marijuana and that was a signal that they were impaired,” Moran said. Under the new rules, employers “cannot rely on smell to determine if someone is impaired,” making enforcement of a drug-free workplace more fraught.

Additionally, because screening for marijuana use gives no indication of when an employee last used cannabis, it can’t determine if an individual is high on the job or not.

“For employers, the better course of action is we should take action based on performance standards,” not suspected use of marijuana, Moran said. For example, if a worker's job performance is subpar, or they are acting in a manner that may be unsafe, address that issue directly, but don't use suspected marijuana use as a pretense for action, she said.  

Despite the protections the law provides most employees, there are some notable exceptions.

Employers whose business must follow federal Department of Transportation regulations  may test and penalize marijuana users.

Additionally, because marijuana remains illegal at the federal level, a business or organization that receives federal dollars may have to  test employees if testing is a condition of receiving the federal funds.  

Overall, private employers are limited in what they can do when it comes to curbing off-duty use of cannabis, and will need to change policies to reflect the times, the panelists said.   

“You’re going to want to ...  develop a proactive strategy…and get out ahead of it,” Johnston said.