Employees and Pot
Can Employees Still Get Fired for Smoking Pot?
(That depends but everybody must get hired)
New York recently became one of the 16 states that allows adults to use marijuana recreationally. That follows its legalization for medicinal use several years ago, and its decriminalization a few decades before. Like all the states that have made this move, it is in conflict with federal law which still classifies cannabis as an illegal drug. So the question is left for employers: How do I handle this in the workplace?
New York City drew a bright line. Last year it passed a law prohibiting testing for marijuana before an offer of employment. The law allows existing employees to be tested, and organizations that are funded or overseen by the federal government can abide by the federal rules.
The State addressed the question by adding the use of cannabis as an “outside work activity” against which employers are prohibited from discriminating per the Labor Law. This effectively means that you cannot reject an applicant based upon their use of marijuana while off the job. On the job, you can still ban use, and you can still require employees to be fit for duty (unimpaired). Employers beware, however: The new state law defines impairment and limits the circumstances under which an employee can be held accountable for it.
Once again, what appeared to be the simple act of legalization has brought with it more questions than answers. And that will probably be the case for as long as each state takes its own approach and the feds keep marijuana classified as it is. One certainty is that the rules and guidance will change as the issue evolves and employers need to check the latest state of their local and the federal law before taking any adverse employment actions because they find that an employee has smoked – or ingested in any way - marijuana.
Let us know if we can help you navigate these or any other developing employment issues.
