ALBANY, N.Y. (NEWS10) — As New York’s recreational marijuana laws continue to take shape, employers must get used to stowing their assumptions on when and if their employees choose to smoke.
“For instance, marijuana the smell does linger, but that’s not probable cause anymore,” explains Christine Taylor, a partner at Towne Law Firm. “It was the knee-jerk reaction to be like, you obviously are using, I don’t want to employ you anymore, and that can absolutely kind of get you in trouble now.”
Taylor hosts educational seminars where she advises employers on how to proceed in such a rapidly changing environment. The latest update by the NYS Department of Labor outright prohibits employers from marijuana testing either when hiring or on suspicion, an employee is impaired.
“Marijuana stays in your system for so long, but now for example, some people had a policy that if someone was hurt on the job, you immediately have to go for a drug test and if you had flagged for marijuana, they would immediately fire you. You can’t do that anymore, because just testing positive for marijuana in your system is no longer good enough,” she explains to NEWS10 ABC’s Mikhaela Singleton.
She further explains such quick judgments could land an employer in hot water in certain cases of discrimination.
“Some of the symptoms perhaps of impairment could overlap with some of the symptoms of some disabilities and you want to be careful with that,” she says.
“Additionally, because the law guarantees expungement [select marijuana convictions] and not just sealed records, as a person applying for a job you no longer need to report it because it didn’t exist, for all intents and purposes. As an employer, just like you wouldn’t discriminate against people for any other things, you should keep that in mind generally as well. Are they still a good employee?” Taylor further explains.
However, that’s not to say safety standards are out the window. Taylor advises employers document everything.
“You have to have articulable symptoms is what the law says, so that means you have to actually be impaired such that you can no longer perform the duties of your job,” Taylor says. “The best thing to do is to make a report and have witnesses of that person being incapable of doing their job either to the standards you set such that it doesn’t meet the requirements of the position or such that they are endangering other people.”
“That’s how you’re a good employer is meet these standards, make your expectations clear. If they’re incapable of meeting your safety standards or their working standards, it doesn’t matter necessarily if it was impairment via weed or alcohol or anything else,” she goes on to explain.
And although abstaining from marijuana can’t be a condition of employment, there can still be rules surrounding what happens on work property.
“There’s no ‘weed-free offices’ so to speak. You can’t restrict what people are doing in their personal time. Their breaks and all of that are still considered work time so to speak, so yes you can be like no you cannot bring marijuana into this office, for example,” she says.
She also adds there are caveats to the new laws permitting recreational marijuana, for instance in the case of federal jobs like the post office or contractors like GE.
“Because marijuana is still illegal on a federal level, you could still test in those cases or otherwise set additional restrictions,” Taylor explains.
The best advice is to make yourself an informed employer and employee.