In May 2021, New York became the 15th state to legalize adult-use marijuana. But with federal regulations still labelling cannabis a controlled substance, employers and employees may wonder what marijuana legalization means for them. Specifically, you may be asking, can your employer still do marijuana drug testing in the workplace?

New York Follows the Trend of Marijuana Legalization

On March 31, 2021, Governor Andrew Cuomo signed the New York Marijuana Regulation and Taxation Act (MRTA). The law removed marijuana from the state’s controlled substances list and legalized possession and use of set amounts of cannabinoids for adults over age 21. Cuomo had promised to legalize marijuana in his 2021 State of the State agenda. The passage of the MRTA promises to allow New York to follow Colorado, Oregon, and 13 other states, as well as the District of Columbia, in developing a cannabis industry that will result in thousands of new jobs and millions in tax revenue. It also creates new protections for workers across the state.

Federal Marijuana Legalization Lags, Leaving Cannabis a Controlled Substance

But employers may find those protections confusing because marijuana use and possession remain illegal at the federal level. Since the 1970s, the federal government has classified marijuana as a Schedule 1 controlled substance. The Schedule 1 classification means the government maintains there is no safe or medicinal use for the drug and research into its use is strictly regulated.

There have been many attempts to get the federal Food and Drug Administration to reclassify the drug, or to amend the Controlled Substances Act to remove marijuana. Most recently, in May 2021, U.S. House Judiciary Chair Jerry Nadler reintroduced the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act) — a federal marijuana legalization law that would help people convicted of federal drug crimes expunge their convictions, and make recreational use legal nationwide. Still, the federal bill will face steep opposition, leaving no promise of federal decriminalization. And that leaves employers and their employees wondering about how to treat marijuana in the workplace.

Medical Marijuana Use and Disability Discrimination

New York has recognized therapeutic uses of marijuana to treat cancer, HIV/AIDS, and chronic pain since the 2014 Compassionate Care Act was passed. The MRTA expanded the list of eligible medical marijuana conditions to include:

• Anxiety
• Insomnia
• Muscular dystrophy
• Alzheimers
• ALS
• Parkinson’s disease
• Multiple Sclerosis
• Spastic spinal cord injury
• Epilepsy
• IBS
• Neuropathy
• Huntington’s disease
• PTSD

As of June 2021, there were more than 151,000 certified marijuana patients in New York. Certainly, many of those patients are employed by companies that subject their employees to mandatory or random drug testing. Could they be fired for testing positive for THC when they have a medical marijuana prescription?

The Americans with Disabilities Act (ADA) generally protects against disability discrimination, requiring employers to make reasonable accommodations for workers with disabilities or medical conditions. But, the ADA does not apply to substance dependence disorders. Similarly, federal courts have ruled that the ADA does not require employers to accommodate for a patient’s medical marijuana use.

However, just like with marijuana legalization, state laws can offer protections not available at the federal level. The MRTA says:

“No person, registered organization, licensee or permittee, employees, or their agents shall be subject to arrest, prosecution,  or penalty in any manner, or denied any right  or  privilege,  including but not limited to civil liability or disciplinary action by a business  or occupational or professional licensing board or  office,  solely for  conduct  permitted  under this chapter.”

That includes employers. The law prohibits business owners from disciplining or firing employees for past medical or recreational marijuana use on their own time. It also prevents discrimination against applicants for new positions based on their history of marijuana use. However, employers may still prevent the use of cannabis in the workplace, and may discipline employees who come to work intoxicated, particularly if their condition would affect their safe operation of vehicles or other business equipment.

What Does the MRTA Mean for Drug Testing in the Workplace?

So what about random drug testing at work? Marijuana use is more difficult to test for than, for example, alcohol. When you drink alcohol, your blood alcohol content returns to normal in just a few hours. While the intoxicating effects of cannabis may only last about as long, trace amounts of THC can remain in a person’s blood stream for weeks. That means an employee could use marijuana on Friday night and fail a drug test when they return to work on Monday, or even the Monday after that. That’s why the New York MRTA makes it illegal for employers to include marijuana in their workplace drug testing.

The MRTA will take time to go into full effect. Some believe legal marijuana dispensaries won’t be open to the (non-certified patient) public until December 2022, as the state sorts out various licensing and regulations obstacles. But the protections for New York workers who use marijuana as medicine, or even recreational use begin immediately.

At Eisenberg & Baum, LLP, our New York-based discrimination attorneys represent individuals who face employment consequences for their medical and recreational marijuana use. We understand New York’s new marijuana legalization laws, and know how to use them to protect your job in the face of disability discrimination or anti-marijuana sentiment at work. Contact us today to schedule a consultation.