L ABOR & EMPLOYMENT
Weed at Work By DEAN ROCCO
T
he labyrinth of medical and adult-use marijuana laws continues to expand across the United States. At present, 18 states have adult-use programs and 37 states permit cannabis for medicinal use. Rasmussen, Gallup and Harris polls from 2021 reported that well above 60 percent of Americans favor cannabis “being legal.” In a Gallup poll from August 2021, 49 percent of Americans acknowledged trying cannabis – the highest level ever measured by Gallup. In light of these figures, it is not surprising
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that human resources departments are increasingly having to confront cannabis-related personnel matters. Anticipating that the increased use of cannabis under new legalization statutes might conflict with employers’ existing drugfree workplace policies, states are beginning to include employee-use rights in their statutory frameworks. For example, at the same time New York’s Marijuana Regulation and Taxation Act (MRTA) legalized adult use in 2021, it prohibited
employers from taking adverse action against employees who engage in legal use of cannabis offsite, outside of work hours, and without use of the employer’s equipment or other property. In addition to prohibiting discrimination against “off-duty” cannabis use, the MRTA prohibits most employers from testing employees for cannabis unless they are expressly required to do so under other applicable law (e.g., federal drug regulations for commercial truck and bus drivers, New York drug-testing mandates covering for-hire vehicle motor carriers), or if an employee exhibits an articulable symptom of impairment. This effectively eliminates pre-employment drug testing for most employers. The MRTA expressly permits employers to take adverse actions if employees exhibit articulable symptoms of impairment; notably, the smell of cannabis by itself is not an articulable symptom of impairment. In New Jersey, regulations codifying the state’s adult-use ban on discrimination against employees for lawful, off duty cannabis use prevent employers from taking adverse actions against employees simply due to cannabinoid metabolites in their bodily fluid. Although New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act does not expressly prohibit drug BACK TO CONTENTS
