For a couple of years now, business leaders, government representatives and HR professionals have been gathering to discuss the pros and cons of legalizing marijuana in New York. I was invited to join many of those discussions in the past. Many questions and concerns have surfaced when Governor Andrew Cuomo signed legislation on March 31 legalizing the recreational use of marijuana for adults ages 21 and older. New York now joins 15 other states and the District of Columbia in legalizing recreational cannabis.
According to Pew Research, two-thirds of all Americans favor legalization of marijuana use for medical or recreational use. Many people believe marijuana use no more dangerous than alcohol abuse. We actually had one client where the owner of the company regularly brought in marijuana laced edible treats to share with employees. Employees were even supplied a wall of snacks to purchase when they get the “munchies”- a common side effect of marijuana use. My consultant had the very unpleasant job of informing this client on how many levels of wrong this practice was and how much risk was involved.
HR professionals have been dealing with problems of alcohol and drug abuse at work for years. In the past decade, we have been dealing with the opioid crisis impacting the workplace. Well-drafted handbooks contain a Substance Abuse in the Workplace policy outlining the company’s policies and procedures regarding legal and illegal substance abuse at work. These policies will require updates incorporating the new law. It’s important to note many organizations have overriding regulatory requirements such as Department of Transportation regulations and since marijuana is still illegal on the federal level, federal contractors may take adverse action against an employee based their cannabis use.
Under the new law, employers may continue to enact and enforce policies prohibiting marijuana in the workplace. However, it is in practical opposition to the part of the law that affirms cannabis use cannot be the basis for discrimination in hiring and other adverse employment decisions. That means the employer can prohibit employees for using cannabis while on the job or working while under its influence, but they may not decline to hire someone who tested positive to cannabis in their system, and they cannot fire an employee for the mere fact that the individual sometimes uses legal cannabis products at home.
Employers and HR pros most looming concern surrounds impairment. Once legalized, how do we tell if the employee used cannabis at lunch and are now impaired? Is that a gummy on your breath?
With alcohol, we have a test, a gauge. We have little means to measure impairment in cannabis use even when the law is on our side. We are left with having to increase the ability to exercise reasonable suspicion, meaning watching an employee who displays specific symptoms that interfere with work duties or threaten workplace safety. This may be economically and practically impossible if you think of what it would take for a large manufacturer to monitor every employee on whether they are high and judging how high is considered impaired. Impairment can even be harder to determine in white-collar jobs. We can prohibit use during mealtime and breaks but if all employees did what they were told, my firm would be out of business. Post-accident determinations are not the preferred method in workplace safety. It all seems too subjective and reactive, right?
Additionally, the law expands eligibility for medical marijuana and provides that individuals with previous marijuana convictions for conduct that is now legal will have their records automatically expunged which may revise employers’ pre-employment screening procedures.
Most sections of the New York recreational marijuana law take effect immediately, including the legalization provisions. However, cannabis sales will not begin until the Cannabis Control Board is formed, and state officials draft regulations that will control the market. This is estimated to take at least two years.
The Cannabis Control Board may provide employers with more guidance. In the meantime, employers can update their policies including whether to remove pre-hire tests for marijuana. We recommend developing some aligning procedures to monitor impairment, use reasonable suspicion, and train managers accordingly. Employers can begin to formulate how to communicate expectations to employees along with developing reporting and investigation procedures.
Employees will need to be reminded of prohibitions on marijuana use covering possession during the workday, impairment monitoring during working hours, on the employer’s premises and while using company equipment or other property. And maybe it will help to monitor employee snack intake too!