Medicinal and recreational marijuana gradually is becoming more acceptable to many Americans. Once
a staple of the counterculture and anti-war movements of the 1960’s, in the ensuing decades attitudes
changed to the point that use of the drug is more tolerated by mainstream society than ever before
even though many legal, ethical and medical conflicts and concerns remain.
States gradually have been legalizing it even though their laws are by no means uniform and may differ
widely. Beginning with Colorado and Washington in 2012, many states have passed statutes allowing
recreational use of the drug. Currently, the District of Columbia and 33 states have legalized it to some
extent while other states have decriminalized it but without actually permitting retail sales.
New York is not standing still with respect to this issue either. Governor Andrew Cuomo established an
advisory board in August of 2018 that was given the task of writing a bill to be presented to the
legislature for potential approval in early 2019. Many observers believe that the state will have the
administrative and regulatory provisions in place no later than one year after the law’s passage. How
will marijuana’s legalization potentially impact the workplace?
Marijuana use by some employees, of course, is nothing new and has been a problem for decades but
once legalized the number of workers on the drug may increase. According to the National Safety
Council, Marijuana is the most frequently used illicit drug of abuse in the United States and the drug
most often detected in workplace drug testing. In 2014, about 6.8 million adults ages 18 to 25 (19.6%)
and about 13.5 million adults ages 26 and older (6.6%) used marijuana
It is classified as a drug, as is commonly known, but what may be less well known is that contemporary
varieties are 10-30 times more potent than what was available in the 1960’s. Is a worker likely to be
impaired by using it and cause injury to himself or co-workers? According to a recent study by the
National Institute on Drug Abuse, employees who tested positive had 85% more injuries, 55% more
industrial accidents and 75% greater absenteeism when compared to those who tested negative. Other
factors include higher turnover rates, increased unemployment and workers’ compensation claims,
decreased productivity, and the filing of more lawsuits.
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Fortunately, an employer’s duty to provide a safe and healthful workplace still appears to be supported
by legislative bodies, regulators and the courts. Case law originating in states that have passed
marijuana laws, albeit in its infancy and at times contradictory, seems to sustain an employer’s
responsibility to protect their employees from injury and illness even to the extent that some lawsuits
brought by terminated workers on medical cannabis were dismissed.
What are some steps for employers to take if New York legalizes marijuana use?
Implement or continue employee drug testing. OSHA’s 2018 memo clarifying its 2016 position
that outlawed drug testing now allows it as a legitimate attempt to protect workers providing it
not used by employers for discriminatory, retaliatory or intimidation purposes. The National
Safety Council reports that studies show drug testing works; employees are three times less
likely to produce a positive test result if they know they will be tested. An expanded testing panel
that also includes the most commonly abused prescription drugs may better protect your
workforce.
Review then Revise Company Drug Policy if Necessary. The company drug policy must be very
specific, up-to-date, and detailed in the interest of fairness, transparency, consistency and to
reduce the potential for litigation. An attorney specializing in this area of law should be retained
to critique this policy and be authorized to make on-going changes as needed to conform with
any future modifications to the state law.
Provide Outreach and Assistance for Employees who have Drug Problems. Refer them to an
in-house or community-based treatment program for counseling and treatment.
Please direct any questions or concerns to:
The Safety Division at Hamond Safety Management
Anthony Vacchio, avacchio@hamondgroup.com 516-762-4224