I was at an industry meeting a few weeks ago and someone asked me what we’re doing to change our workplace policy on drugs now that the marijuana laws are changing. Honestly, until someone asked me that, I hadn’t thought about making any changes, not because I want to stick my head in the sand but I just can’t keep track of what’s right and what’s wrong these days. I know we don’t want to work anywhere near someone who’s feeling the effects of marijuana. We also want a safe workplace, and we obviously need a safe repair for our customers. So what’s the right policy?

Current Policy

Our current policy allows us to administer a drug or alcohol test as a condition of employment at a pre-designated facility (a doctor’s office). We have the right to test new hires and also conduct annual testing. Our written policy also allows for a test if an employee is involved in a workplace accident, damages a vehicle, machinery, equipment or property. If an employee refuses to submit to a test, they can be terminated. We can offer appropriate services and rehab programs for treatment if one tests positive.

Marijuana

The quandary we have to deal with these days is, what if someone tests positive for marijuana? The law, in some cases, allows for marijuana use. Do we let employees off the hook in this case?

I recently did some research, so I’ll outline what I’m in the process of implementing in New York and maybe it will help your business:

Know the law in your state (New York, in our case). The Compassionate Care Act, which was signed into law in July 2014, legalizes and regulates the manufacture, sale and use of medical marijuana in New York. The Act sets forth specific conditions under which a patient may obtain medical marijuana.

The Act does not authorize the use of the marijuana plant, but only liquids manufactured by certified laboratories that are subject to quality control. At least one of the forms of marijuana that can be prescribed through the state contains only low amounts of THC, the psychoactive component for which most employer drug-free workplace programs test.

Like medical marijuana legislation in some other states, the Compassionate Care Act establishes employment protections for medical marijuana use. Specifically, it provides that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. It also contains a nondiscrimination provision, which states that being a patient to whom a doctor in New York State has prescribed medical marijuana is a “disability” under the New York State Human Rights Law (NYSHRL). As a result, employers in New York State with four or more employees are prohibited from firing or refusing to hire an individual, and from discriminating against an individual in compensation or in the terms and conditions of employment, based on the individual’s status as a patient who is certified under state law to use medical marijuana. Additionally, businesses in New York with four or more employees must provide reasonable accommodations to employees or prospective employees who are certified to use medical marijuana.

Importantly, the nondiscrimination provision of the Compassionate Care Act sets forth two exceptions: (1) it “shall not bar enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance;” and (2) it “shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.”  Accordingly, New York employers will still be able to maintain a safe workplace by restricting employees from performing their duties while under the influence of marijuana. For example, employers may still adopt and maintain reasonable policies or procedures – including drug testing – to ensure that an individual is not working while under the influence of a controlled substance (including marijuana) or engaging in the illegal use of drugs. Substance abuse prevention policies should notify employees that the use of controlled substances (including medical marijuana) is prohibited during work hours and that disciplinary action will be taken against anyone who violates that policy.

One difficulty for employers in implementing such policies is that the regulations do not define “under the influence.” Unlike alcohol, the effects of medical marijuana may not be as readily apparent through observation alone and are likely to persist long-term. Such uncertainty raises the risks of litigation for employers as they try to establish objective standards on which to base an adverse employment action.

Have an open-door policy and accommodate employees. Under the NYSHRL, employers have an obligation to accommodate individuals with disabilities. Accordingly, employers will need to be mindful of legal obligations to engage in an interactive dialogue with employees who are certified patients under the Act and, where possible, reasonably accommodate employees with respect to underlying medical conditions. The accommodation strategies will need to include considerations of an employer’s obligation to maintain a safe work environment. Under the Americans with Disabilities Act, permitting the use of a drug made illegal under federal law is not a reasonable accommodation, but New York’s law appears to reach further.

Bear in mind that New York law does not require an employer to accommodate a medical marijuana user by allowing the user to carry marijuana onto work property or to use it on work premises. An employer should be careful not to implement accommodations that are affirmatively illegal as a matter of federal law. Stated otherwise, accommodating the user, but not the use, is advised. Nevertheless, it may be difficult to navigate between federal and state law, particularly regarding employees who hold safety-sensitive jobs but who are not subject to federal bars on marijuana use. For these reasons, some employers may wish to continue to reject medical marijuana as an excuse for a positive test result.  If they choose to take this position, however, they may become the subject of a “test case” seeking to clarify the limits of the Compassionate Care Act where inconsistent with federal law.

Setting policies for your state and the next steps. I recommend the following:

• Get (and stay) informed about an employer’s obligations with regard to medical marijuana.
• Evaluate the issues raised by this law in the context of your workplace and the obligations your company has in light of other federal regulations and contracts.
• Educate managers on their obligations.
• Implement, revise and/or update your drug-free workplace policy.