Three HR Practices We Predict Will be “Up in Smoke” Due to New York Marijuana Legislation

On March 31, 2021, Governor Cuomo signed the “Marihuana Regulation and Taxation Act” (“MRTA”). Among other things, this law legalizes adult recreational use of marijuana; it amends New York’s “off duty conduct” law to protect employees from discrimination based on marijuana use in some circumstances; and it immediately or potentially expunges some marijuana-related convictions.

Here are three ways we predict this law will change HR practices in New York:

Pre-employment Drug Testing. Some New York employers may consider limiting pre-employment drug testing except when required by law or contract. With the changes enacted by MRTA, a positive cannabis test alone may no longer suffice to support a no-hire decision. As a consequence, some employers may choose to simply forgo it as a condition of employment.

Many New York City employers previously stopped drug testing job applicants in response to an NYC law which became effective in May 2020.

Drug Policies / Discipline. Prudent employers will pause before taking any adverse action (e.g., firing, disciplining, refusing to promote, etc.) against an employee based on that employee’s known marijuana use. This is particularly true if the use is outside of work, off duty, and without using the employer’s equipment.

Under the MRTA, employers may still have and enforce lawful drug and alcohol policies to maintain drug-free workplaces. They may also fire employees for marijuana use where the law would require it, or when failing to do so would jeopardize a federal contract or funding.

However, the new law may make it more difficult for some employers to discipline employees for suspected drug use. Unlike in the case of alcohol, where a breathalyzer can instantaneously reveal alcohol use, no test exists for cannabis use. Thus, drug testing has limited value in helping employers determine the presence of on-the-job cannabis use. Rather, the employer will need to point to “articulable symptoms” of “impairment” while working that “decrease or lessen the employee’s performance of the duties or tasks” or evidence that such specific “articulable symptoms” interfere with an employer’s obligation to provide a safe and healthy workplace.

Employers also should keep in mind that employee use of medical marijuana may require reasonable accommodation under laws that protect against disability discrimination.

Criminal Conviction Records. Some employers may consider amending their arrest and conviction policies and practices.

Employers in New York already must be careful about making employment decisions based on arrests and conviction records so as not to fall afoul of criminal conviction discrimination laws, e.g., New York Correction Law Article 23-A; the New York City Fair Chance Act and its recent amendments. And, the fact that certain marijuana-related criminal convictions will now be expunged “automatically”, and others only on “request,” could create an even greater potential for missteps in this area.

Consider the following scenarios:

  1. An applicant whose prior marijuana-related criminal conviction was automatically expunged, does not disclose this conviction. The background check report incorrectly reveals the conviction.
  2. An applicant mistakenly believes a prior marijuana-related criminal conviction was automatically expunged, and incorrectly fails to disclose the conviction. The background check report reveals the conviction.
  3. An applicant mistakenly believes a prior marijuana-related conviction has not been expunged and discloses it. The background check comes back clean.

What do you think your HR staff would recommend in each circumstance? Could HR revoke any of these job offers without risk?

Next Steps

Employers should consider revisiting their hiring and employment processes. This includes those related to pre-employment questions about drug use, drug screening, drug-free workplace policies, and criminal convictions, to ensure such policies and practices are consistent with their legal obligations.

They should educate staff involved in hiring decisions about their obligations and new policies, including how to handle scenarios like those discussed above.

Finally, they should educate managers on the signs of “articulable symptoms” to identify on-the-job drug use or impairment and ensure appropriate discipline documentation and handling of such matters.

Experienced employment counsel can help you audit your practices, educate your staff, and help you navigate these and other tricky issues in your workforce.

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